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J. NORMAN STARK, ATTORNEY and REGISTERED ARCHITECT
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Vol. 2009-03 March, 2009

EXCAVATING CONTRACTOR HAS NON-DELEGABLE DUTY

An excavating contractor has a non-delegable duty to inform itself of the location of underground utility lines in order to avoid damaging them. The Revised Code of Ohio, similar to the laws of other states and jurisdictions, provides specific, mandatory requirements of prior notifications in connection with excavation work and protection of underground utility lines.

A recent opinion of the Court of Appeals of Ohio reaffirmed this duty, citing several earlier cases in which this duty was also affirmed:

"In Ohio, a non-delegable duty is imposed upon an excavator to inform himself as to whether utility lines exist below ground so that he may avoid damaging them. GTE Tel. Operations v. J&H Reinforcing & Structural Erectors, Inc., 4th Dist. No.01CA2808, 2002-Ohio-2553 WL1291953, at Para.9, citing GTE North, Inc. v. Carr (1993), 84 Ohio App.3d 776, 779, 618 N.E.2d 249. When an excavator fails to perform such duty, it proceeds at its own risk and may incur liability for damage to utility lines or other structures and improvements.

"{9} In order to establish actionable negligence, a plaintiff must prove the existence of a legal duty, the defendant's breach of the duty, and an injury proximately caused by the defendant's breach. Wallace v. Ohio Dept. of Commerce, Div. of State Fire Marshal, 96 Ohio St.3d 266, 2002-Ohio-4210, at 22. The existence of a duty is a question of law, and it depends upon the foreseeability of the injury. Id. at 22-23. An injury is foreseeable if a reasonable, prudent person would have anticipated that harm was likely to result from the performance or nonperformance of a particular act. Id. at 23; Mussivand v. David (1989), 45 Ohio St.3d 314, 321
{10} Ohio common law imposes an affirmative, non-delegable duty upon one excavating below ground to inform himself about the location of underground utility lines so that he can avoid damaging them. Ohio Gas Co. v. Blaze Bldg. Corp., Williams App. No. WM-03-019, 2004-Ohio-2881, at 11; Northeast Ohio Natural Gas Corp. v. Stout Excavating, Inc., 156 Ohio App.3d 144, 2004-Ohio-600, at 7; Ohio Edison Co. v. Wartko Constr. (1995), 103 Ohio App.3d 177, 180. A reasonable, prudent person . could rightfully assume that an excavator would observe the law and exercise ordinary care in carrying out his duty. Swoboda v. Brown (1935), 129 Ohio St. 512, 524 ("No fault may be ascribed to failure to anticipate the negligence of another. On the contrary, one may rightfully assume the observance of the law and the exercise of ordinary care by others until the contrary is made to appear.")."

Ohio Energy Assets, Inc. v. Grange Ins., 2007-Ohio-2732.

You would not think any duty small, If you yourself were great.
George Macdonald (1824-1905)

AUTHOR / EDITOR: J. NORMAN STARK is an Attorney-at-Law, a Registered Architect, (AIA, NCARB) Registered Landscape Architect, Interior Designer, Planner and Senior Appraiser (ASA), admitted to practice law before the Bar of Ohio, the US District Courts, Ohio and Illinois (Central Dist.), the US Court of Appeals, and the United States Supreme Court. He is a Mediator, Arbitrator and Litigator with experience in Business, Construction Law, and Public Works, and with additional experience in Real Estate, Construction Attorney (Legal Project and Crisis Management), and as an Expert Witness (Forensic Architect). His office is in Cleveland, Ohio.

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