Who Is Responsible for the Underground Utilities?
Kegler Brown Construction Newsletter May 1, 1998
When underground utilities are discovered during construction in areas not shown on the plans, the owner, contractor and utility are often at odds as to who is legally responsible.
Ohio Revised Code §153.64 requires public owners to contact OUPS to obtain information concerning underground utilities and accurately provide this information to the contractor in the plans and specifications.
In a recent case, the excavation contractor encountered underground telephone lines in the proposed sewer line path. The owner claimed it satisfied its duty by contacting the utility who failed to respond and that the contract placed the risk of determining the exact location of utilities on the contractor in any event. The contractor claimed that the plans failed to accurately show the telephone lines. Both the architect and the telephone utility denied liability to the contractor because they had no contract with him.
The Court of Appeals for Allen County ruled that the statute, imposing the duty on the owner, controlled over any contrary contract language and that the contractor might be able to maintain a negligence action against the public utility based upon its failure to designate the location of underground utilities at the construction site. Therefore, both the public owner and utility had potential liability to the contractor for the damages resulting from project delay associated with the hidden telephone lines. United Tel. Co. v. Williams Excavating (1997), 125 Ohio App. 3d 135.