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Smith v. Exelon Corp

United States District Court, D. Maryland

June 7, 2018

MICHAEL SMITH et al., Plaintiffs,
v.
EXCELON CORPORATION d/b/a BALTIMORE GAS AND ELECTRIC et al., Defendants.

          MEMORANDUM OPINION

          Ellen Lipton Hollander United States District Judge

         In this tort suit, plaintiff Michael Smith[1] has sued Excelon [sic] Corporation, doing business as Baltimore Gas and Electric (“BG&E”), and USIC Locating Services (“USIC”), alleging negligence. ECF 1 (Complaint).[2] In particular, Smith alleges that August 9, 2013, he was engaged in laying pipe underneath the ground, and was injured by an electrical arc flash as a result of defendants' failure to properly mark the presence of underground electrical lines. Id. Plaintiff seeks $250, 000 in damages. Id. at 10.

         Defendants have moved for summary judgment under Fed.R.Civ.P. 56, on the grounds that defendants were not negligent; Smith was contributorily negligent; and Smith assumed the risk of injury. ECF 38. The motion for summary judgment is supported by a memorandum of law (ECF 38-1) (collectively, “Motion”) and roughly 500 pages of exhibits. Plaintiff opposes the Motion (ECF 43, “Opposition”), and has attached numerous exhibits.[3] Defendants replied (ECF 46, “Reply”) and submitted additional exhibits.

         No hearing is necessary to resolve the motion. See Local Rule 105.6. For the reasons that follow, I shall deny the Motion.

         I. Factual and Procedural Background

         A.

         Smith worked as a pipe layer for Gray & Sons, Inc. (“GSI”). ECF 38-3 (Deposition of Michael Smith) at 2. On the day of Smith's injury, August 9, 2013, he was installing a conduit line approximately two feet underground, outside 1700 Ridgely Street in Baltimore City, a building owned by the nonprofit group Second Chance, Inc. (the “Second Chance Project”). See ECF 1, ¶¶ 7, 9, 10; ECF 38-11 (Contract Proposal).[4] Prior to the excavation and installation, GSI entered a ticket with the Maryland Miss Utility “one-call system, ” requesting that BG&E and Miss Utility mark the location of all underground facilities. ECF 38-18 (USIC Ticket Detail 13438650, dated August 2, 2013).

         The Maryland Miss Utility law requires an owner of an underground “facility” to mark the location of the facility, upon request, prior to the excavation of a site. Md. Code (2010 Repl. Vol., 2017 Supp.), § 12-126 of the Public Utilities Article (“P.U.”). The statute provides, in relevant part, id. § 12-126(b)(1): “An owner-member shall mark the location of its underground facility by marking on the ground within 18 inches on a horizontal plane on either side of the underground facility.”

         P.U. § 12-101 helpfully defines many relevant terms. An “owner” is “a person that: (i) owns or operates an underground facility; and (ii) has the right to bury an underground facility” and includes “a public utility.” P.U. §§ 12-101(j)(1), 12-101(j)(2)(i). An “owner-member” is “an owner that participates as a member in a one-call system.” P.U. § 12-101(k).

         An “underground facility” is “personal property that is buried” for “transmission or conveyance of electronic, telephonic, or telegraphic communications or electricity” and “includes pipes, sewers, conduits, cables, valves, lines, wires, manholes, attachments, and those portions of poles below ground.” P.U. § 12-101(o)(1)-(2). In this case, the “facility” is electrical wiring running through underground pipes.

         The Maryland Miss Utility Law defines the “one-call system” as “a communications system in the State that: (1) allows a person to notify owner-members of planned excavation or demolition by: (i) calling a toll-free number or abbreviated dialing code; or (ii) initiating an interactive Internet ticket request; and (2) maintains an underground facilities information exchange system.” P.U. § 12-101(i). A public utility must be a member of the one-call system. Id. § 12-123(a)(1).

         A “ticket” is “a numbered document issued by a one-call system to notify owner-members that: (1) a person intends to perform an excavation or demolition . . . .” P.U. § 12-101(m)(1). An “excavation” is “an operation in which earth, rock, or other material in or on the ground is moved, removed, or otherwise displaced by using any tool, equipment, or explosive” and includes “trenching, digging.” P.U. § 12-101(f).

         USIC is a utility locating company that contracts with utility companies to locate and mark underground facilities in response to notices of intent to excavate submitted through one-call systems. ECF 38-9 (Deposition of Joseph Feronti) at 2, p.30. BG&E, the owner of the underground facility in this instance, contracted with USIC to mark the facility after the submission of a ticket by GSI. See ECF 38-18. It is undisputed that BG&E and USIC marked the ground on August 5, 2013. See id.

         The Miss Utility law places obligations on those digging in the area of underground facilities, as well. P.U. § 12-127(c) provides:

(1) A person performing an excavation or demolition shall exercise due care to avoid interference with or damage to an underground facility that an owner-member has marked in accordance with § 12-126 of this subtitle. (2) Before using mechanized equipment for excavation or demolition within 18 inches of an underground facility marking, a person shall expose the underground facility to its outermost surfaces by hand or other nondestructive techniques. (3) A person may not use mechanized equipment to excavate within 18 inches of the outermost surface of an exposed underground facility.

         These provisions effectively establish two overlapping “tolerance zones” that excavators must observe. They may not use mechanized equipment within 18 inches of the above-ground markings made by the facility owner until they have “expose[d] the underground facility to its outermost surfaces by hand.” P.U. § 12-127(c)(2). And, once an underground facility is exposed, they may not use mechanized equipment within 18 inches of the exposed facility at any point. P.U. § 12-127(c)(3).

         B.

         Smith first arrived at the site of the Second Chance Project on August 5, 2013, along with the project's foreman, Doug Coughlin. ECF 38-4 (Deposition of Doug Coughlin) at 5. Smith and Coughlin scouted the area and identified the utility markings. ECF 38-3 (Deposition of Michael Smith) at 5-6.

         By the morning of August 9, 2013, the area marked by USIC had already been partially excavated. See Id. at 10. According to Smith, the marked utility had been exposed by “test pitting, ” or digging with hand tools around the electrical facility. Id; Id. at 4. The identified facility was encased by a concrete “duct bank.” Id. at 4.[5] Smith measured 18 inches from the side of the duct bank, to determine the point where he believed mechanized equipment could be used. Id. at 10. He stood on top of the concrete duct bank to observe while Coughlin operated the mechanized backhoe. Id. at 11.

         Unfortunately, the excavation bucket of the backhoe, operated by Coughlin, struck a second electrical conduit, which plaintiff maintains was outside the 18 inch tolerance zone and “unidentified.”[6] See ECF 43 at 3; see also ECF 43-2 at 2 (photograph of trench), id. at 40 (photograph of string connecting markings, indicating that the damage occurred outside the corridor of markings). This caused an “arc flash, ” which severely burned Smith, who was standing on the duct bank nearby. See ECF 38-3 at 12, p. 244.

         The central questions at this juncture are whether the markings were accurately placed, and whether GSI employees heeded them.

         C.

         Both Smith and Coughlin maintain that they kept their mechanized equipment at least 18 inches away from the marks placed by USIC. See ECF 38-3 at 10; ECF 43-2 at 13 (Deposition of Doug Coughlin). Plaintiffs expert, Thomas M. McCauley, a Professional Engineer (ECF 43-2 at 25), ...


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