Jones v. Oklahoma Natural Gas Co.

1994 OK 89, 894 P.2d 415, 65 O.B.A.J. 2421, 1994 Okla. LEXIS 98, 1994 WL 329685
CourtSupreme Court of Oklahoma
DecidedJuly 12, 1994
Docket80574
StatusPublished
Cited by10 cases

This text of 1994 OK 89 (Jones v. Oklahoma Natural Gas Co.) is published on Counsel Stack Legal Research, covering Supreme Court of Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Jones v. Oklahoma Natural Gas Co., 1994 OK 89, 894 P.2d 415, 65 O.B.A.J. 2421, 1994 Okla. LEXIS 98, 1994 WL 329685 (Okla. 1994).

Opinions

WATT, Justice.

To decide this certified interlocutory appeal we must interpret the terms of the Underground Facilities Damage Prevention Act, 63 O.S.1981 §§ 142.1, et seq., and their application, to the facts of this appeal. This appeal arises from a personal injury suit [417]*417brought by Jeffrey T. Jones against Oklahoma Natural Gas Company. Jones contends that ONG negligently mismarked the location of an underground natural gas pipeline, and caused him to be hurt when the pipeline exploded and burned when Jones struck it with a power auger. Jones also contends that the legislature passed the Act solely to protect underground facilities and does not apply to personal injuries that result from the Act’s violation. ONG claims that Jones and Robinson violated the Act by failing to notify ONG of their intent to dig post holes for a fence. Thus, says ONG, it was deprived of a second opportunity to mark the location of the gas line. ONG concludes that it is entitled to judgment in its favor as a matter of law.

THE ACT

The Underground Facilities Damage Prevention Act, 63 O.S.1981 §§ 142.1, et seq., requires excavators, before starting to dig with powered or mechanized equipment, to notify operators of “underground facilities” of their intentions. The term “underground facilities,” includes telephone, electrical, gas, sewer, water, and other lines. “Excavate,” means to dig “... in or on the ground by use of mechanized equipment ... including ... auguring, ... [or] trenching....” 63 O.S. 1981 §§ 142.2.15 and 142.2.5.

An excavator must notify the operators of all underground facilities before beginning to excavate a “private easement, or on or near the location [of underground facilities].” Id., § 142.5. The operator of underground facilities is then required to indicate the approximate location of its line by marking a four-feet wide path, the outer edges of which are two-feet on either side of its facility.

Operators may establish notification centers, so that an excavator may satisfy the notice provisions of the Act with one call. Id. § 142.10. This procedure is called the “One Call System.”

FACTS

The parties stipulated to the relevant facts. Robinson Construction Company was in the home building business. Robinson owned a lot in Edmond, Oklahoma, upon which he was building a house for a third party. Robinson had contracted with Marty Grooms for Grooms to install a sprinkler system on Robinson’s Edmond lot. On June 18, 1990, before installing the sprinkler system, Grooms gave notice to a notification center, in which ONG was a participant under the One Call System. As required by the Act, Grooms requested that ONG, and other utilities who participated in the One Call System center, detect the approximate location of ONG’s facilities where they underlay Robinson’s lot. Later that day, an ONG employee flagged and painted lines two-feet on either side of the line that the ONG employee had marked as the location of ONG’s gas line, where it underlay Robinson’s lot. Later events, however, showed that the ONG employee mis-marked the approximate location of the line to the extent that the line was not within the four-feet wide area. The ONG employee showed that he recognized he might have mismarked the line by entering in his log the notation “bad locate,” but neither he nor any other ONG employee informed Grooms of this fact. Grooms installed the sprinkler system without incident.

Grooms installed the sprinkler system on a subcontract from Robinson Construction. Grooms, however, did not say so in his One Call System notice. Nor did Grooms mention that Robinson would be installing a fence after Grooms completed installing the sprinkler system. In his One Call System notice, Grooms stated that the “Nature of Work” was “Installing sprinkler system full yard.” Grooms added that the work would be of two days duration, commencing June 19, 1990. Grooms’ notice also said that the work was being done for “Resident.”

On June 28, 1990, ten days after Grooms gave his One Call System notice, Jones, who was Robinson’s only employee, and its superintendent of construction, went to the Edmond lot with his employer, Chuck Robinson, to install a fence. Jones knew that Grooms had given a One Call System notice to ONG, and saw ONG’s markings ostensibly showing the approximate location of the gas line. Jones used a gasoline powered auger to dig the fence post holes. As Jones was digging a [418]*418post hole, his auger struck ONG’s line, which resulted in the explosion and fire that injured Jones. The parties stipulate that Jones dug no closer than thirty inches to the centerline of the area that ONG’s employee had marked with flags and paint as the approximate location of the gas line. Thus, they agree that Jones never dug within the four-feet wide area marked by ONG’s employee as the approximate location of the gas line.

THE CERTIFIED QUESTIONS

The trial court certified two issues for interlocutory appeal under 12 O.S.1991 § 952(b)3:

1. Whether Jones is in the class intended to be protected by the Act.

2. What is the meaning of the term “approximate location,” as used in the Act?

The trial court also held that the Act is not applicable here, “because it was enacted for the sole purpose of protecting underground facilities.”

DISCUSSION

I.

The Act Applies to This Action

Jones urges us to hold that the Act does not apply to his cause of action against ONG. We have carefully reviewed the Act, and find nothing in its terms to support a holding that it was passed solely to prevent damage to underground facilities. The title of the Act says that it is “An Act relating to public health and safety.” Section 142.9.C of the Act requires an excavator to keep sources of ignition away from a damaged facility, if such damage “endangers life, health or property.” Clearly, the legislature intended that the Act apply both to personal injuries caused by damage to underground facilities, and to actions to recover damages for injury to the facilities themselves. Had the legislature intended a narrower application of the Act we believe it would have said so.

Jones Was an “Excavator, as that Term is Used in the Act

Jones contends that he was not an “excavator,” because § 142.2.5© of the Act excludes from that definition “any individual excavating on his own property ...” We reject this contention because the Act limits the exclusion from the definition of the word “excavator” to one who “is not in the excavating business for hire.” § 142.2.5©. [Emphasis added.] Clearly, Robinson Construction Company, a building contractor who was Jones’ employer, was in the excavation business. Thus, Robinson fell within the Act’s definition of “excavator.”

Jones’s Violation of the Act Does Not Entitle ONG to Judgment in Its Favor As a Matter of Law

ONG contends that Jones’s failure to give a One Call System notice for ONG to mark the location of the line entitles it to summary judgment in its favor. We disagree because we believe that the extent, if any, to which Jones’s violation of the Act contributed to his injuries is a matter to be considered by a jury.

In support of its claimed right to summary judgment, ONG relies on Bond v. Oklahoma Natural Gas, 849 P.2d 1100 (Okla.App.1993). In Bond,

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Jones v. Oklahoma Natural Gas Co.
1994 OK 89 (Supreme Court of Oklahoma, 1994)

Cite This Page — Counsel Stack

Bluebook (online)
1994 OK 89, 894 P.2d 415, 65 O.B.A.J. 2421, 1994 Okla. LEXIS 98, 1994 WL 329685, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jones-v-oklahoma-natural-gas-co-okla-1994.