[Cite as Southeastern Natural Gas Co. v. Vititoe Constr., Inc., 2011-Ohio-1844.]


                                        COURT OF APPEALS
                                    DELAWARE COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



SOUTHEASTERN NATURAL GAS                          :         JUDGES:
COMPANY                                           :         Hon. Sheila G. Farmer, P.J.
                                                  :         Hon. Julie A. Edwards, J.
        Plaintiff-Appellee                        :         Hon. Patricia A. Delaney, J.
                                                  :
-vs-                                              :
                                                  :         Case No. 10CAE070053
VITITOE CONSTRUCTION, INC.                        :
                                                  :
        Defendant-Appellant                       :         OPINION



CHARACTER OF PROCEEDING:                                Appeal from the Court of Common Pleas,
                                                        Case No. 08CVH091211


JUDGMENT:                                               Affirmed



DATE OF JUDGMENT ENTRY:                                 April 14, 2011



APPEARANCES:

For Plaintiff-Appellee                                  For Defendant-Appellant

JOHN K. KELLER                                          CRAIG G. PELINI
JOHN M. KUHL                                            RAYMOND C. MUELLER
52 East Gay Street                                      8040 Cleveland Avenue, NW
P.O. Box 1008                                           Suite 400
Columbus, OH 43216-1008                                 North Canton, OH 44720

                                                        For Amicus Curiae Ohio Gas Association

                                                        ANDREW J. SONDERMAN
                                                        175 South 3rd Street
                                                        Suite 900
                                                        Columbus, OH 43215
Delaware County, Case No. 10CAE070053                                                   2

Farmer, P.J.

      {¶1}     On November 19, 2007, appellant, Vititoe Construction, Inc., was

performing construction work on a public improvement project when a trackhoe operator

struck and damaged an underground gas line owned by appellee, Southwestern Natural

Gas Company.

      {¶2}     On September 10, 2008, appellee filed a complaint against appellant for

negligence. A bench trial commenced on May 25, 2010. By judgment entry filed June

18, 2010, the trial court found in favor of appellee as against appellant in the amount of

$123,862.73, finding appellant had actual notice of the gas line and was responsible for

the damage under R.C. 153.64.

      {¶3}     Appellant filed an appeal and this matter is now before this court for

consideration. Assignments of error are as follows:

                                            I

      {¶4}     "THE TRIAL COURT ERRED IN ITS INTERPRETATION OF R.C.

§153.64(D), WHEN IT CONSTRUED THE STATUTE TO MEAN THAT APPELLANT

WAS RESPONSIBLE FOR DAMAGES TO APPELLEE'S GAS LINE, DESPITE

HAVING FOUND THAT APPELLEE HAD FAILED TO MARK ITS GAS LINES IN

ACCORDANCE WITH THE MANDATORY PROVISIONS OF R.C. §153.64(C)."

                                            II

      {¶5}     "THE TRIAL COURT ERRED IN HOLDING THAT UNDER THE

PROVISIONS OF R.C. §153.64, THE COMPARATIVE NEGLIGENCE OF APPELLEE

WAS IRRELEVANT."
Delaware County, Case No. 10CAE070053                                                     3


                                             I

       {¶6}   Appellant claims the trial court erred in granting judgment to appellee. We

disagree.

       {¶7}   Specifically, appellant argues the trial court's finding that it had "actual

notice" was incorrect as "actual notice" under R.C. 153.64(D) must be narrowly

construed. Said statute states the following in pertinent part:

       {¶8}   "(C) The contractor to whom a contract for a public improvement is

awarded or its subcontractor, at least two working days, excluding Saturdays, Sundays,

and legal holidays, prior to commencing construction operations in the construction area

which may involve underground utility facilities, shall cause notice to be given to the

registered underground utility protection services and the owners of underground utility

facilities shown on the plans and specifications who are not members of a registered

underground utility protection service, in writing, by telephone, or in person. Where

notice is given in writing by certified mail, the return receipt, signed by any person to

whom the notice is delivered, shall be conclusive proof of notice. The owner of the

underground utility facility, within forty-eight hours, excluding Saturdays, Sundays, and

legal holidays, after notice is received, shall stake, mark, or otherwise designate the

location of the underground utility facilities in the construction area in such a manner as

to indicate their course together with the approximate depth at which they were

installed. The marking or locating shall be coordinated to stay approximately two days

ahead of the planned construction.

       {¶9}   "(D) If the public authority fails to comply with the requirements of division

(B) of this section, the contractor to whom the work is awarded or its subcontractor
Delaware County, Case No. 10CAE070053                                                      4


complies with the requirements of division (C) of this section, and the contractor or its

subcontractor encounters underground utility facilities in the construction area that

would have been shown on the plans and specifications for such improvement had the

registered underground utility protection service or owner of the underground utility

facility who is not a member of a registered underground utility protection service whose

name, address, and telephone number is provided by the public authority been

contacted, then the contractor, upon notification to the public authority, is entitled to an

increase to the contract price for itself or its subcontractor for any additional work that

must be undertaken or additional time that will be required and is entitled to an

extension of the completion date of the contract for the period of time of any delays to

the construction of the public improvement.

        {¶10} "***

        {¶11} "Any public authority who complies with the requirements of division (B) of

this section and any contractor or its subcontractor who complies with the requirements

of division (C) of this section shall not be responsible to the owner of the underground

utility facility if underground utility lines are encountered not as marked in accordance

with the provisions of division (C) of this section by the owner of the underground utility

facility, unless the contractor or its subcontractor has actual notice of the underground

utility facility.   Except as noted in this division, this section does not affect rights

between the contractor or its subcontractor and the owner of the underground utility

facility for failure to mark or erroneously marking utility lines. The public authority shall

not make as a requirement of any contract for public improvement any change in

responsibilities between the public authority and the owners of the underground utility
Delaware County, Case No. 10CAE070053                                                   5


facilities in connection with damage, injury, or loss to any property in connection with

underground utility facilities."

       {¶12} In its judgment entry filed June 18, 2010, the trial court included the

following interpretation of the evidence vis-à-vis R.C. 153.64(D):

       {¶13} "The statute does not require the contractor to have actual knowledge of

the specific location of the utility in order to be responsible for the damaged line. A

contractor only needs to have actual notice 'of the underground utility facility'. In this

situation, it is not a matter of OUPS mis-marking the gas line and the contractor hitting

the line in relying on the recently placed markings. Here there were no markings made

after the most recent request by the contractor. Yet, the contractor relied on OUPS lack

of markings as determining no gas line existed.       No confirmation was made as to

whether OUPS or Southeastern did appear and not mark. Certainly, the responsibility

and duty lies with the contractor to ensure the lack of markings means no utilities;

particularly since Mike Vititoe had knowledge from the plans of a gas line and he was

told that there was a gas line albeit outside the work area and a permanent marker

existed on the date of the accident and perhaps two permanent markers existed at the

beginning of the project. Further, OUPS and or Southeastern had marked the lines at

the beginning of the construction project."

       {¶14} We note the trial court's decision is based upon its interpretation of the

evidence. A judgment supported by some competent, credible evidence will not be

reversed by a reviewing court as against the manifest weight of the evidence. C.E.

Morris Co. v. Foley Construction Co. (1978), 54 Ohio St.2d 279. A reviewing court must

not substitute its judgment for that of the trial court where there exists some competent
Delaware County, Case No. 10CAE070053                                                     6

and credible evidence supporting the judgment rendered by the trial court. Myers v.

Garson, 66 Ohio St.3d 610, 1993-Ohio-9.

       {¶15} It is accepted that appellant's owner and president, Mike Vititoe, contacted

the Ohio Utility Protection Service (hereinafter "OUPS") in compliance with R.C.

153.64(C) three times prior to the November 19, 2007 incident. T. at 230. The last call

was on November 5, 2007. Id. Appellee's affiliate employee who was dispatched to the

scene, Richard Spencer, testified on November 6, 2007, he was told via a telephone

conversation with Kim Vititoe, appellant's office manager, that re-marking was not

necessary. T. at 214-215, 298. Mrs. Vititoe disputed this testimony, but the gas line

was not re-marked after Mr. Vititoe's November 5, 2007 call. T. at 296-298, 335.

       {¶16} The gravamen of this case is whether appellant had "actual notice" of the

location of the gas line. It is undisputed that Plaintiff's Exhibit 1, construction drawings

from the pre-construction meeting, correctly delineated by standard right-of-way

designation the location of the subject gas line. T. at 88-90, 124. Attending the pre-

construction meeting were Mr. Vititoe, Jonathan Carey, construction inspector for

Delaware County, Brian Dilley, capital improvements project engineer for Delaware

County, and Jerry Owings, utility coordinator for Delaware County. T. at 90, 120-121.

Mr. Carey and Mr. Dilley both testified the gas line was specifically discussed at this

meeting. T at 92, 121-122, 149. At the site prior to the beginning of the project,

permanent markers were in place to mark the location of the gas line. T. at 94, 125-

126.   After the incident, Mr. Carey measured the area of the gas line break and

determined the plans were accurate as to where the gas line actually was located. T. at

100-101, 116; Plaintiff's Exhibit 1-A, Red X.
Delaware County, Case No. 10CAE070053                                                   7


       {¶17} Mr. Spencer testified prior to the start of construction, he marked the gas

line on two occasions.      T. at 205-209.     Roger Osborne, an employee with Utility

Technologies International, a company providing services to the pipeline business,

testified when he was at the site on October 25 and 26, 2007, the gas line was

completely marked with flags and Mr. Vititoe told him he knew where the gas line was,

but needed the telephone lines located and marked. T. at 255-256.

       {¶18} Mr. Vititoe refuted this testimony, claiming the engineer's measurements

were off, he never had actual notice of the location of the gas line, and he never asked

for the telephone lines to be marked. T. at 313, 332. Mr. Vititoe stated he was told no

gas lines were in the way of the project. T. at 307-308. However, there is a semantic

difference between "in the way of the project" and the digging of a sump hole to divert

water from the bridge construction area. The gas line was ruptured during the digging

of a sump hole to direct water away from the area so a bridge could be constructed. Mr.

Vititoe insisted he had no notice of the gas line.

       {¶19} Clearly, the trial court rejected Mr. Vititoe's account and accepted the

testimony of the Delaware County employees, Mr. Carey and Mr. Dilley, as well as the

testimony of Mr. Spencer and Mr. Osborne that the gas line had been clearly marked

prior to November 5, 2007. Mr. Osborne even opined there was no room to place any

more markers. T. at 255.

       {¶20} Upon review, we concur with the trial court's finding that appellant's actual

notice consisted of previous permanent markers and the delineation of the gas line on

Plaintiff's Exhibit 1.

       {¶21} Assignment of Error I is denied.
Delaware County, Case No. 10CAE070053                                                       8


                                              II

       {¶22} Appellant claims the trial court erred in not adopting the doctrine of

comparative negligence to its decision since the trial court found appellee did not mark

the gas line in accordance with R.C. 153.64(C). We disagree.

       {¶23} A strict interpretation of R.C. 153.64(D) establishes a complete defense

for a utility if a contractor has actual notice, as it is necessary for a contractor to comply

with the statute and be aware of utility lines before digging and causing damage and/or

injury. Therefore, comparative negligence principles are inapplicable.

       {¶24} Assignment of Error II is denied.

       {¶25} The judgment of the Court of Common Pleas of Delaware County, Ohio is

hereby affirmed.

By Farmer, P.J.

Edwards, J. and

Delaney, J. concur.




                                               _s/ Sheila G. Farmer__________________




                                               _s/ Julie A. Edwards__________________




                                               _s/ Patricia A. Delaney________________

                                                                 JUDGES

SGF/sg 325
Delaware County, Case No. 10CAE070053                                             9


             IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO

                             FIFTH APPELLATE DISTRICT




SOUTHEASTERN NATURAL GAS                 :
COMPANY                                  :
                                         :
       Plaintiff-Appellee                :
                                         :
-vs-                                     :         JUDGMENT ENTRY
                                         :
VITITOE CONSTRUCTION, INC.               :
                                         :
       Defendant-Appellant               :         CASE NO. 10CAE070053




       For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Delaware County, Ohio is affirmed. Costs to

appellant.




                                          s/ Sheila G. Farmer__________________




                                          _s/ Julie A. Edwards__________________




                                          _s/ Patricia A. Delaney________________

                                                          JUDGES
