NJ Appellate Court Considers Violation of Underground Facility Protection Act

Violation of New Jersey’s Underground Facility Protection Act Not Necessarily Proximate Cause of Damage to Underground Plant

A New Jersey appellate court has determined that a violation of the One-Call markout requirements imposed by the Underground Facility Protection Act, N.J.S.A. 48:2-73 to -91 (“UFPA”), as well as the implementing regulations of the Board of Public Utilities, N.J.A.C. 14:2-1.1 to -6.10, does not automatically subject the violator to liability for damage to underground plant.

The UFPA imposes various requirements upon persons seeking to excavate in New Jersey, including at the outset an obligation to notify the One-Call system of an intent to excavate. On receipt of such a notice, the One-Call system notifies the owners of underground utility plant in the area of the proposed excavation, requiring such owners to “mark out” their plant, thus enabling the excavator to avoid such plant when performing work. Under the One-Call program, the excavator is provided with a window within which work must begin; it may not start earlier than the start date and must begin no later than a subsequent “Start-By” date.

In the instant matter, having been notified of proposed excavation by the defendant, J.F. Kiely Construction Co. (“Kiely”), Verizon New Jersey, Inc. (“Verizon”) marked out its plant in Egg Harbor Township, where the construction was occurring. The One-Call center advised Kiely that construction must begin no later than August 31, 2011. Kiely began construction, but not until September 7, 2011, one week past the deadline. In the course of excavation, Kiely damaged Verizon’s plant.

Verizon moved for summary judgment on the grounds that there was no genuine dispute as to material facts and that Kiely’s failure to abide by the Start-By date constituted negligence, resulting in liability to Verizon for damages. The trial court agreed and entered judgment for Verizon.

On appeal, the court held that Kiely’s failure to adhere to the markout requirements in terms of commencing construction by the Start-By date constituted evidence of negligence but that it did not conclusively establish negligence, nor that Kiely’s actions were the proximate cause of Verizon’s damage. Rather, the Appellate Court noted a factual dispute as to whether Verizon’s plant had been properly marked out; the court reasoned that if it had not been properly marked out, Verizon’s plant might have been damaged by Kiely even if Kiely had begun excavation within the designated window. In other words, the court held, Kiely’s actions may have constituted a technical violation of the UFPA, constituting prima facie evidence of negligence, but whether Kiely’s actions were the proximate cause of Verizon’s harm was a question for trial.

The appellate court also determined that there had been no evidence at the trial of the amount of damage sustained by Verizon and that both questions, i.e., whether Kiely’s actions proximately caused Verizon’s damage and, if so, to what extent, should be addressed on remand of the matter to the trial court.

View a PDF of the full Opinion here.

Do you have any questions? Would you like to discuss the matter further? If so, please contact me, Dennis Linken, at 201-806-3364.