                   United States Court of Appeals
                         FOR THE EIGHTH CIRCUIT
                                 ___________

                                 No. 01-2888
                                 ___________

Clay Rural Water System, Inc.,          *
                                        *
            Plaintiff-Appellee,         *
                                        *
      v.                                *
                                        *
One Call Systems, Inc.;                 *
                                        *
            Defendant-Appellant,        *
                                        *
Kaneb Pipeline Company,                 *
                                        * Appeal from the United States
            Defendant-Appellee.         * District Court for the District
________________________                * of South Dakota.
                                        *
One Call Systems, Inc.,                 *      [UNPUBLISHED]
                                        *
            Third Party Plaintiff-      *
            Appellant,                  *
                                        *
      v.                                *
                                        *
Brian McKee, doing business as          *
McKee Excavating,                       *
                                        *
            Third Party Defendant-      *
            Appellee.                   *
                                   ___________

                           Submitted: March 13, 2002

                                 Filed: March 19, 2002
                                     ___________

Before FAGG and BEAM, Circuit Judges, and GOLDBERG,* Judge.
                             ___________

PER CURIAM.

        Before digging to lay new water lines for a farmhouse in South Dakota, Brian
McKee, a contractor for Clay Rural Water System, Inc., contacted One Call Systems,
Inc., a Pennsylvania company. One Call has contracted with South Dakota to field
calls from those who plan to dig on property in the state and to notify affected utilities
of the proposed excavation. Once a utility receives notice, the utility flags its line on
the property in question so the excavator will not dig there. Although One Call was
given the correct legal description of the property and One Call’s map showed Kaneb
Pipeline Company had a buried petroleum pipeline on the land, One Call never gave
Kaneb notice. McKee ruptured Kaneb’s pipeline while trenching for the water lines.

       Clay Rural later brought this diversity action against One Call and Kaneb to
recover damages associated with the cleanup of the resulting petroleum spill. After
settling third-party claims, the parties stipulated to the total damages and the case
proceeded to a jury trial solely as a comparative negligence action. The jury returned
a verdict for Kaneb and assessed fault at 98% to One Call, 1% to Clay Rural, and 1%
to McKee. One Call filed a motion for new trial asserting there was insufficient
evidence to support the jury’s apportionment of fault. The district court** denied the
motion, stating the “apportionment of fault was clearly a jury question, and . . . not
contrary to the clear weight of the evidence.”



      *
       The Honorable Richard W. Goldberg, Judge, United States Court of
International Trade, sitting by designation.
      **
       The Honorable John B. Jones, United States District Judge for the District of
South Dakota.

                                           -2-
       On appeal, One Call asserts there was insufficient evidence to support the
verdict. One Call contends no reasonable jury could find in favor of Kaneb because
Kaneb should have repainted weathered fence posts marking where its pipeline
crossed the property’s driveway and posted warning signs on the posts to comply with
applicable regulations. One Call also contends no reasonable jury could have
apportioned 98% of the liability to One Call because McKee should have seen the
painted fence posts marking the pipeline and Clay Rural should have known about
the pipeline and discovered One Call’s error. Having carefully reviewed the
evidence, we conclude a reasonable jury could find One Call’s failure to notify Kaneb
of the proposed excavation was the proximate cause of the damages in this case, and
could reasonably assign One Call 98% of the fault. See EFCO Corp. v. Symons
Corp., 219 F.3d 734, 738 (8th Cir. 2000). One Call also asserts the district court
should have given the jury an instruction on Kaneb’s continuing duty to maintain
pipeline markers. We disagree. The jury was instructed that Kaneb had a duty to
inspect the pipeline right-of-way 26 times a year and to correct any adverse condition
within a reasonable time. The district court did not abuse its discretion in refusing
to give an additional instruction. See Gray v. Bicknell, 86 F.3d 1472, 1485 (8th Cir.
1996).

      We affirm the district court.

      A true copy.

             Attest:

                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                         -3-
