Date: 02-13-2014

Case Style: Southwestern Bell Telephone Company dba AT & T Oklahoma v. Flintco, Inc., Manhattan Construction Company, Manhattan Construction Group, Inc. Peterson Contractors, Inc. and USIC Locating Services, Inc.

Case Number: CJ-2010-6939

Judge: Dana Kuehn

Court: District Court, Tulsa County, Oklahoma

Plaintiff's Attorney: Ken Felker and Lori A. Sanders

Defendant's Attorney: Theresa Noble Hill, Lindsay McDowell and Tacie Lynn Martinez for USIC Locating Service, Inc.

John Paul and John David Lackey for Peterson Contractors, Inc.

Description: Southwestern Bell Telephone Company dba AT & T Oklahoma sued Flintco, Inc., Manhattan Construction Company, Manhattan Construction Group, Inc. Peterson Contractors, Inc. and USIC Locating Services, Inc. on negligence theories.

Court's Finds of Fact and Conclusions of Law

1. USIC had a Contract with AT&T to mark its utility lines, including fiber opä cables.

2. USIC employee Jason Cheek had been to the Tulsa Convention Expansion site numerous times over several months locating utility lines, including AT&T’s fiber optic lines.

3. Peterson was digging “geo-piers” at the Tulsa Convention Center Expansion project in November of 2008. (Tran. Pg. 109, line 7 through Pg. 114, line 7, Ex. 21, Ex. 33).

4. Peterson called the Oklahoma One Call System on 11/3/2008 and again on
11/5/2008 for utilities to be marked prior to digging. (Ex. 33, Pgs. PET 574 & PET 576, EX 10 Pgs. USIC 44 & 46).

5. USIC located the lines based on Peterson’s calls on 1 1/6/08 (ex. 10, Pgs. USIC 45 & 47).

6. Peterson began digging geo-piers on 11/12/2008. (Ex. 33, Pg. PET 581)

7. USIC again marked the AT&T utility lines at the site on 11/14/2008 (ex. 10, Pg. USIC 43).

8. USIC marked the width of the relevant AT&T fiber optic cable duct package as between 3 feet wide and 4 feet wide. The fiber optic duct package was approximately 18 inches. (Ex. 1, Ex. 27).

9. USIC marked the fiber optic package using marks that were in excess of 1 inch (up to 4 inches wide), as required by the Common Ground Alliance Best Practices Guide. (Tran. Pg. 260, lines 5-8, Ex. 41, Pg. 86).

10. Three days after the original markings by UCIS, Peterson analyzed the distance between the marked lines and the area
to be drilled for Pier 53.

11. Trucks and other construction equipment, including foot traffic were constantly on the site and driving or walking over markings placed on November 14th Many of the marking were fading, but still visible.

12. Peterson noted on 11/17/2008 that certain piers were very close to the marked utility lines and would need moved. (Ex. 33, Pg. PET 586).

13. Engineer Bob Lapke of GFC approved movement of Pier 53 on (or about)
11/17/2008, to avoid marked utility lines (Testimony of Bob Lapke, Ex. 3, Ex. 25, Ex. 26).

14. On 11/18/2008, Pier 53 was moved to avoid the marked AT&T fiber optic cable. (Tran. Pg. 130, line 6, through Pg. 135, line 10), Ex. 20, Testimony of Gary Fielden).

15. The distance between the newly moved Pier 53 and the AT&T lines was measured by Peterson to try and ensure the distance was beyond the 24 inch tolerance zone, including the radius of the auger (Ex. 4 Pg. PET 83, Ex. 11 Tran. Pg. 133, line 1, throughPg. 135, line 10).

16. Following measurement of the newly moved Pier 53, Peterson employee Chris Schick proceeded to drill Pier 53. (Tran. Pg. 135, lines 14-2 1).

17. The method of measurement was not recorded in any way.

18. While drilling Pier 53, Peterson struck a buried AT&T fiber optic cable. (Tran. Pg. 137, line 12, through Pg. 138, line 15).

19. Following the line strike, Peterson immediately notified Tulsa Vision Builders and an investigation was commenced. (Tran. Pg. 138, lines 14-25).

20. Peterson conducted an investigation and determined that the edge of the hole was
25 inches away from the edge of the marked AT&T lines. (Tran. Pg. 139, line 5, through Pg. 140, line 8, Ex. 14, Ex. 32).

21. Tulsa Vision Builders, through its site Supervisor Gary Fielden, conducted an investigation and determined that the edge of the hole was 25 inches from the edge of the marked AT&T lines. (Ex. 1, Ex. 13, Ex. 14, Ex. 27, Ex. 32, Tran. Pg. 140, Line 9, through Pg. 141, line 5, Testimony of Gary Fielden).

22. USIC did not conduct an investigation on 11/18/08. (Trans. Pg. 46, line 20, through Pg. 47, line 14, Tran. Pg. 204, line 2, through Pg. 206, line 8).

23. Peterson was aware that prior to the dig that problems existed with the pier layout because the proposed pier locations were extremely close to the marked lines. (Tran. Pg. 124, lines 3-15).

24. Peterson cleared the job site following the investigations by Gary Fielden as all geo-piers were completed or deleted, and moved to their next project. (Ex. 20, Tran. Pg. 130, line 15, through Pg. 131, Line 7).

25. USIC conducted an investigation on 11/19/2008 using locate marks close to Pier
12 as a reference to the damaged area.

26. USIC’s investigation used a ladder as a measuring tool to try and identify whether the fiber optic cable at Pier 53 was struck within 24 inches of the utility locate marks near Pier 12. (Tran. Pg. 213, Lines 12-25).

27. Jason Cheek of USIC has had mis-locates on prior occasions. (Tran. Pg. 266, Lines 20-22).

CONCLUSIONS OF LAW

The duty to measure and follow guidelines to prevent damage to underground facilities is imposed by Okla. Stat. tit. 63 §142.1 et. seq.(Oklahoma Underground Facilities Damage Prevention Act) on both Defendant Peterson and Defendant USIC. Peterson argues that USIC is negligent per se of violating the statute and negligent under common law, and USIC denies those claims and argues that Peterson alone is negligent for the damage to the AT&T utility line.

The elements of negligence are (1) [a party] has sustained an injury, (2) that the party from whom the injured party seeks to recover was negligent, and (3) that the negligence was a direct cause of the injury sustained by the claiming party. Okia. Uniform Jury Instr. 9.1. In this case, the party that sustained injury is the Plaintiff, AT&T. The Co-defendant’s who have filed claims against each other are asking the Court to determine if either of them were negligent, and if so was that negligence the direct cause of the injury to AT&T.

When evaluating if two parties were negligent, the Court refers to the doctrine of comparative negligence established in Boyles v. Oklahoma Natural Gas Co., 619 P.2d 613 (Okla. 1980). As is noted by Okla. Unform Jury Instr. 9. 7, “There may be more than one direct cause of injury. When an injury is a result of the combined negligence of two or more persons, the conduct of each person is a direct cause of the injury regardless of the extent to which each contributes to the injury.” In this case, the Court finds that both Defendant Peterson and Defendant UCIS are negligent and their combined negligence is the cause of the injury to AT&T.

The evidence presented proves that UCIS had a duty to mark the area near the facilities in an appropriate and reasonable manner. The evidence also leads the Court to conclude that the lines were not appropriately marked in relation to the actual location of the AT&T lines.

The evidence presented also showed that Peterson knew that there was an issue with the location of the lines with the area to be dug, yet they did not call for a remark of the utility lines and measured the location of where to dig themselves. Although Peterson is relying on UCIS to mark the lines appropriately, Peterson took great risk in digging knowing that the pier positions were moved days after the November 14th marking by UCIS and chose to proceed with remarking the area to dig on their own. The method used by Peterson for the measurement to move the dig was not recorded in anyway and not recalled in great detail, which is troubling to the Court.

Also, the investigations done by the parties were inconsistent as to where Peterson chose to dig. The results of two of the investigations revealed a one inch buffer for Peterson to have to hand dig and locate the line. The Court finds that is proof of how not only were USIC measurements off, but that Peterson took a great risk in its decision to hand measure and to drill so close to a utility mark.

Based on the lack of reasonableness to the actual location of the utility line, the Court finds that UCIS was negligent and their degree of negligence is eighty percent (80%). Based on the improper measurement to move the area in which to dig and the lack of calling professional locators to remark the area, the Court finds that Peterson was negligent and their degree of negligence is twenty percent (20%). As damages were agreed upon by all the parties to be $65,000, the parties are liable for their percentage of negligence as the Plaintiff AT&T’ s percentage of negligence was zero.
As noted in the Jones v. ONG, Co. 894 P.2d 415 (Okia. 1994), a violation of a statute “may, therefore, be negligence per se, but only if the violation proximately caused or contributed to the damages at issue.” As this Court has already determined that UCIS was negligent for violating the Oklahoma Underground Facilities Damage Prevention Act by improperly marking the AT&T utility which contributed to the damages, the Court rules in favor of Peterson. Although the Court has found UCIS was negligent per se, that does not absolve Peterson of their negligence, and therefore, the contributory negligence finding by the Court. Id.

Outcome: Settled and dismissed with prejudice as to Peterson and USIC

Plaintiff's Experts:

Defendant's Experts:

Comments: