Contributed by David R. Brougham, Special Counsel – Hall & Evans, LLC
A True Hypothetical
A metropolitan area water and sanitation district received proper and timely notification of intended excavation by a company installing underground fiber optic cable. The notification requested that the district locate by appropriate surface paint markings its sanitation system in the area where the excavation was to take place. The district located only its main sanitary lines in the area in question. It did not locate the lateral and service lines serving businesses and residential users in the involved area. Additionally, it did not locate the taps where the service laterals join the main. The involved district employee who had been with the district for more than a decade was not aware of any responsibility to locate the service laterals. Two days later the excavator struck a service line serving a bar and restaurant. The resulting physical damages exceeded thirty thousand dollars, irrespective of the down time for the excavating company. A civil lawsuit was filed seeking in excess of $30,000 and attorney’s fees incurred by the plaintiff excavation company.
I was assigned the lawsuit for defense purposes. In conferring with the district employee who located the sanitation main in this case, he was very surprised when I informed him that since 1993 the Colorado Court of Appeals required that in these circumstances “the district mark the individual service lines within the public thoroughfare” even though the district had no ownership responsibility or ready ability to locate the exact placement of the service lateral. Other issues aside, we were compelled to settle the lawsuit to avoid the damages awardable under the excavation statute, C.R.S. § 9-1.5-101-107. The damage portion of the statute reads as follows:
If an underground facility is damaged as a result of the owner or operator’s failure to use reasonable care in the marking of the damaged underground facility, such owner or operator shall be presumably liable for…any cost or damage incurred by the excavator as a result of any delay in the excavation project while the underground facility is restored, repaired or replaced together with reasonable costs and expenses of suit, including reasonable attorney’s fees and any damage to property resulting from damage to the underground facility.
The appellate decision referenced above is reported as Wycon v. Wheat Ridge Sanitation District, 870 P.2d 496 (Colo. App. 1993).
The object of this article is based on the author’s perception that the requirements of the Wycon decision and the concomitant damages and attorney’s fees for which a district can face liability are not widely known by those who operate water and sanitation facilities in Colorado. Further, despite the virtual impossibility of locating service lateral lines which are the responsibility and owned by the businesses or residences which use Colorado’s sanitation mains, Colorado’s legal system imposes a virtually impossible task on water and sanitation districts. In fact, the author is aware of an engineering company in the metropolitan area which no longer even attempts to locate service laterals on behalf of the water and sanitation districts for which it provides engineering services.
So, What to Do?
In the author’s view, it is imperative to communicate with the requesting excavator and make it clear that the best a district can do is identify on the surface of a street the location of not only a sanitary main, but also the point where the service lines meet the main, even though it is virtually impossible to determine which direction the lateral goes after it leaves the main, unless the district is able to trace the lateral service line from the involved business or residence back to the sanitary main, a generally impossible task. Again, in the author’s view, it is recommended that the requesting excavator be advised in writing of the inability of a given district to identify any location other than the main and the point where the lateral service taps into the main.
Note: This article is not intended to preempt advice or directions given by lawyers who represent the water and sanitation districts in Colorado, but again is intended primarily as a cautionary statement on the above subject.
