United States District Court, D. Maryland
Lipton Hollander United States District Judge
tort suit, plaintiff Michael Smith has sued Excelon [sic]
Corporation, doing business as Baltimore Gas and Electric
(“BG&E”), and USIC Locating Services
(“USIC”), alleging negligence. ECF 1
(Complaint). 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.
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. Defendants replied (ECF 46,
“Reply”) and submitted additional exhibits.
hearing is necessary to resolve the motion. See
Local Rule 105.6. For the reasons that follow, I shall deny
Factual and Procedural Background
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). 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,
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
§ 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).
“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.
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).
“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. §
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.
Miss Utility law places obligations on those digging in the
area of underground facilities, as well. P.U. §
(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
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).
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.
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. 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.
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.” 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.
central questions at this juncture are whether the markings
were accurately placed, and whether GSI employees heeded
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), ...