South Cent. Bell Telephone Co. v. Jones Bros. Contractors, Inc., 0

• Citation: 805 S.W.2d 749
• Decision Date: 05 January 2001
• Docket Number: No. 0,0
• Parties: SOUTH CENTRAL BELL TELEPHONE CO., Plaintiff/Appellee, v. JONES BROTHERS CONTRACTORS, INC., Defendant/Appellant

Page 749

805 S.W.2d 749

SOUTH CENTRAL BELL TELEPHONE CO., Plaintiff/Appellee, v. JONES BROTHERS CONTRACTORS, INC., Defendant/Appellant.

No. 01-5-01-9001CV-00002.

Supreme Court of Tennessee at Nashville.

Feb. 25, 1991.

James E. Zwickel, Nashville, for defendant-appellant.

J. Mark Naftel, Derry Harper, Nashville, for plaintiff-appellee.

OPINION

O'BRIEN, Justice.

This is an appeal from the decision of the Court of Appeals, Western Section, sitting in Nashville, reversing the judgment of the Circuit Court of Davidson County, sitting without a jury, in favor of the defendant.

The case arose from the construction of a new airport terminal in Nashville, Tennessee during the spring of 1983. This construction required that Donelson Pike, a road near the airport complex, be rerouted and improved. As part of this project, South Central Bell (SCB) was requested by the State of Tennessee to relocate its existing underground utility lines so as not to interfere with the construction process on the road. SCB's engineers participated in preconstruction meetings, also attended by representatives of Jones Brothers Contractors, Co. (Jones), where the specifics of the project were discussed. SCB submitted a plan for the relocation of its utility lines. This plan was approved by the State's project engineer.

The telephone facilities involved began at the point where Donelson Pike passes over Interstate 40. The lines crossed the bridge over the interstate encased in a galvanized steel duct. The steel encasement was buried about 24 inches deep and ended approximately forty (40) feet south of the bridge where it connected with a clay conduit. SCB engineers submitted relocation plans which provided that new lines would be encased in PVC conduit and buried at an approximate depth of three (3) feet. These new lines would connect to the clay conduit at a point approximately three (3) feet from the steel conduit. The unused portion of the clay conduit would then be abandoned. Subsequently, by agreement with the State, SCB submitted an alternate plan providing that the PVC conduit would connect with the clay conduit at a point approximately forty (40) feet further south. The State engineer was satisfied that this section of the clay conduit was buried at a sufficient depth so as not to cause any foreseeable problem. He did not inform Jones of the change.

SCB completed its relocation on 20 July 1984. It appears that, at the junction between the clay conduit and the new PVC conduit, a concrete encasement was poured to protect the connection. The engineer for the State testified that he was unaware of this concrete encasement and, had he known of it, he would have endeavored to ensure it was buried below the subgrade level.

On 27 September 1984 defendant was engaged in grading the road in accordance with its contract. The contract provided that Jones was to grade the surface down to the subgrade level. In the course of this grading, Jones struck a concrete bulkhead. This concrete was lifted and removed to a point some two hundred (200) feet away. It was later discovered that this concrete was the concrete encasement poured by SCB. When removed, the concrete encasement severed the telephone lines contained in the conduits.

SCB initiated this action to recover for damages to its telephone lines suffered when Jones removed the concrete encasement. SCB alleged three theories of recovery: common law negligence, trespass and the violation of T.C.A. §§ 65-31-101 et seq. (1982) which is known as the Underground Utility Damage Prevention Act (UUDPA). The trial court, in its findings of fact and conclusions of law, found that Jones was not negligent, not guilty of trespass and that SCB was guilty of contributory negligence in the relocation of its utility lines. The trial court specifically found the UUDPA inapplicable. On appeal, the Court of Appeals reversed, holding that Jones violated the statute and was guilty of negligence per se. Jones filed a timely appeal to this Court, which was granted.

This cause was heard by the judge of the Circuit Court sitting without a jury. Our review of findings of fact is de novo upon the record, accompanied by a presumption of correctness, unless the evidence preponderates otherwise. T.R.A.P. 13(d).

The crux of this matter as it is presented to us here is the Court of Appeals ruling that the relationship between the parties was governed by the UUDPA which requires that excavators, in this case Jones, must ascertain the location of underground utilities in an area prior to excavation. T.C.A. § 65-31-104. The utility operators, which in this case includes SCB, are required to file a notice with the Register of Deeds which includes the location of underground facilities. T.C.A. § 65-31-105. The purpose of this is to provide anyone commencing an excavation with information relative to location of such underground facilities in order that they may serve notice on the operator of the underground facility of their intent to excavate. T.C.A. § 65-31-106. There are other provisions of the Act which are not pertinent to this investigation.

The Court of Appeals found that the trial court offered no explanation for its conclusion that the UUDPA was inapplicable to this case. In its conclusions of law the trial court held that T.C.A. § 65-31-101, et seq., did not apply because the concrete encasing the underground conduit of SCB was located approximately seven inches...