CHAVEZ v. SOUTHERN CALIFORNIA EDISON COMPANY (1994)

OPINION

Does a public utility have a general duty to mark all the points on public streets where it has underground facilities?   If so, the surface of our streets would no doubt begin to take on the appearance of graffiti-covered walls.   In this case we hold there is no such duty:  the duty of a utility to mark its facilities is specifically delineated by a series of statutes in the Government Code passed by the Legislature in 1989.   Those statutes set an outside time limit for an excavator to dig after it has given notice to the utility.   Because the accident in this case occurred outside that time limit, the trial court erred in granting judgment in favor of the plaintiff.

I

Peter J. Chavez received an electric shock when the bit of a boring machine he was operating encountered a powerline underneath the junction of the crosswalk and westbound left-turn lane on Lambert Street.   He climbed out of the pit unassisted.   He was not burned, though as much as 1000 volts of electricity had gone through his body.   Nor were there any other signs of injury.   Chavez was examined at an Anaheim hospital, released, and drove home.

At the time of the shock, July 31, 1990, Chavez was working as a supervisor for an electrical contracting company that installs and repairs traffic signals.   He returned to work a few days later, at another job site, but left work early because he did not believe he could work effectively and his left leg felt weak.   He never returned to work again.

Besides getting workers' compensation benefits, Chavez sued Southern California Edison Company and obtained a judgment for over $700,000.   Here is a summary of the trial testimony:

On April 24, 1990, Chavez' employer notified an organization known as “Underground Service Alert” (“USA”) that it would be digging at the intersection of Harbor and Lambert plus 300 feet in all directions.   As explained below, the right of Chavez' employer to excavate in an area where there are underground utilities extended only 14 days from the notice, unless the right was renewed.   That same day USA subsequently notified Edison that it should “mark entire inter[section]” plus “300ft in all directions.”

The Edison employee responsible for making the marks testified he did just that, i.e., on the next day, April 25, he marked all Edison facilities within the intersection and for 300 feet in all directions from the intersection.   He specifically recalled marking all the powerlines that intersected the crosswalks.

On the other hand, a field superintendent of Chavez' employer testified that the powerline hit by Chavez was not marked in the period May through July, 1990.   The superintendent also said that on the day of the accident, after the shock, the Edison employee went out to the site to mark the powerline.   The superintendent commented it was a little late, the employee said the line must have been rubbed off.   The superintendent replied that a mark made in front of the intersection had not worn off, and the Edison employee made no reply.

The superintendent also testified that one week after April 24 he checked the site for markings and concluded there should be more in light of the existence of an Edison substation on the northwest corner of the intersection.   He also noted that no gas lines at all had been marked in the intersection.   The superintendent called his office to have USA contacted to have the area remarked.   USA sent a notice on May 1 to Edison.   The Edison employee testified that upon receiving the notice he called Chavez' employer, said he had already marked Edison's facilities, and asked whether the employer wanted him to come back out to remark.   An unidentified woman told him that utilities other than Edison had not come out, and there was no need for him to return.   However, the employee was confronted with his deposition testimony that he never received a request to remark the intersection on May 1 in the first place.   Further, an expert testified that the marks that were made indicated the powerline had already turned South before coming near the drilling site under the crosswalk.

Regardless of whether the area was properly marked on either April 25 or May 1, there was no dispute the accident did not happen until July 31, three months after the May 1 notice.   In the interim, during May and June, Edison received a series of five notices from USA, indicating that Chavez' employer had renewed its right to excavate.   Each of these notices, however, stated that there was no request for a re-marking.¹  The last of these notices was dated June 29.   At trial, Chavez conceded that no renewal of his employers' right to excavate was in force on July 31.

On July 31, Chavez was working with a boring machine in a pit east of the intersection of Lambert and Harbor.   The drilling work had taken Chavez and his crew into Lambert toward the middle of the left-hand turn lane for westbound traffic.   As Chavez was drilling, he had one foot on a rail of the machine and the other foot on some of the electrical conduit.   Suddenly he was jolted with a powerful electric shock.

II

In 1989 the Legislature enacted a series of statutes specifying the duties of excavators and operators of underground utilities.  (Stats.1989, ch. 928.)   Essentially, the statutes set up a “regional notification center” system.²  An excavator (such as Chavez' employer), planning to conduct an excavation in an area which is known to contain underground utilities, must notify the regional notification center (such as USA) no less than two working days, but no more than 14 calendar days prior to commencing the excavation.³  The regional notification center is to then notify the utility company (such as Edison), which, within two working days or before the start of the work, must “locate and field mark the approximate location” of its underground facilities.⁴  An electric company must mark powerlines in red.⁵

The statutes obviously establish a duty on the part of utility companies to accurately mark their “installations” when they receive timely notice.   Implicit in the notice is the fact that somebody is going to be excavating within a 14 day period, and that somebody could get hurt if he or she dug into an unmarked powerline.   The question remains as to whether the duty extends to injuries that occur outside the 14–day limit, as happened here.

Neither party has cited, nor has our own research uncovered, any California cases which establish, independent of the 1989 legislation, that utilities have a duty to accurately mark underground installations.   Perhaps this vacuum should tell us something.   On reflection we must conclude that it would be unreasonable to fix on utilities such a duty, at least as regards underground utilities beneath public roads.   Utility lines criss-cross most of our roads.   Transforming public roadways into gigantic color-coded grids for the benefit of anyone who, outside the regional notification center system, just happened to be doing some digging or drilling would be ludicrously expensive, as well as play havoc with public safety.   Indeed, permanent utility marks on public roads would create a horrendous problem for motorists who would be required to decipher all the clutter on the road in front of them.

Because there is no duty to mark lines independent of the 1989 legislation, any duty to accurately mark must itself come from that legislation.   When we consider that legislation as a whole, we find that the statutory scheme here brings closure to the duty to mark:  The duty to insure that an area is accurately marked ends when the excavator's right to excavate, under the statute, ends.

To lawfully excavate in an area which is known to have utilities, an excavator must obtain an inquiry identification number.⁶  The inquiry identification number is only good for 14 days.   After that, there must be a renewal (“revalidation” in the statutory jargon).⁷  Any renewal must be made before the expiration of the “number.” ⁸  The clear implication of these rules is that an excavator has no right to excavate unless it has an inquiry identification number in force.   If the number lapses, the excavator must renotify and obtain a new number.   Moreover—and this point is critical—the statutes also impose an affirmative duty on the part of excavators to notify the regional notification center if a utility's field markings become “no longer reasonably visible.” ⁹

 The requirement of an inquiry identification number which is not good for any more than 14 days, plus the requirement of notifying the regional center if field markings become no longer reasonably visible, when considered together, point toward this ineluctable conclusion:  the duty to accurately mark underground utility installations necessarily must end when the excavator's identification number expires, either at the end of the original 14 days or through such time as the number was properly renewed.   By so limiting the duty, the statute solves the problem of fading by balancing the interests of the parties.   The utility is not “on the hook” for the visibility or accuracy of its markings indefinitely, and during the time that it is on the hook there is a corresponding duty on the excavator's part to notify the regional notification center if the markings are no longer reasonably visible.¹⁰  But by the same token the utility is not relieved of liability for the accuracy of its markings as long as a there is a valid identification number (with the concomitant duty to notify if marks become no longer visible).

The statutes, in short, set out a nicely self-contained system in which all parties enjoy clearly defined rights and obligations.   To extend the duty to mark accurately to the period after the expiration of the right to excavate would have the effect of nullifying much of this finely balanced statutory scheme.   The 14–day requirement in section 4216.2, subdivision (a) would be rendered effectively useless, as would the excavator's notification of fading set out in section 4216.9, subdivision (a).

 The salient fact in the present case is that Chavez' employer did not have a valid inquiry identification number at the time of the accident.   The number expired in mid-July.   That is when Edison's duty to accurately mark the area ended.   Hence it made no difference whether the Edison employee should have remarked the site on May 1;  any duty created by the notification of May 1—or any of the other notifications extending through June 29 for that matter—did not create any duty on Edison's part to have the intersection accurately marked as of July 31.

Chavez argues that the fact his employer may not have complied with its duty to arrange for a re-marking should not relieve the utility of liability.   But this argument assumes that the utility already had a duty—independent of the statutes discussed above—to mark the locations where its installations run under public streets.   As we have pointed out, there is no such duty.   It is only the regional notification system that can impose such a duty—otherwise all utilities would have the obligation to mark all their installations on all streets—a prospect nothing short of ludicrous.

By the same token, the language in subdivision (a)(3) of section 4216.6 that “this section is not intended to affect any civil remedies otherwise provided by law” ¹¹ obviously does not create a generalized duty to mark all streets.   That language only preserves a duty that might have existed outside the regional notification system, and again, there is no such duty.   Finally, the fact that Edison sent someone out to mark in late April did not create any duty to insure the accuracy of its markings at the end of July.   The late-April marking was done because the statutes required it.

The judgment is reversed, and the case remanded with instructions to the trial court to enter judgment in favor of the defendant.

FOOTNOTES

1.   The notices were dated May 8, May 22, June 5, June 18, June 29, and all contained the message:  “RESEND UPDATE DOES NOT NEED LINES MARKED ON SITE NOW.”

2.   Subdivision (h) of Government Code section 4216 provides:“ ‘Regional notification center’ means a nonprofit association or other organization of operators of subsurface installations which provides advance warning of excavations or other work close to existing subsurface installations, for the purpose of protecting those installations from damage, removal, relocation, or repair.”

3.   Subdivision (a) of Government Code section 4216.2 provides:“Except in an emergency, every person planning to conduct any excavation shall contact the appropriate regional notification center, at least two working days, but not more than 14 calendar days, prior to commencing that excavation, if the excavation will be conducted in an area which is known, or reasonably should be known, to contain subsurface installations other than the underground facilities owned or operated by the excavator and, if practical, the excavator shall delineate with white paint or other suitable markings the area to be excavated.”

4.   Subdivision (a) of Government Code section 4216.3 provides:“Any operator of a subsurface installation who receives timely notification of any proposed excavation work in accordance with Section 4216.2 shall, within two working days of that notification, excluding weekends and holidays, or before the start of the excavation work, whichever is later, or at a later time mutually agreeable to the operator and the excavator, locate and field mark the approximate location and, if known, the number of subsurface installations which may be affected by the excavation to the extent and degree of accuracy that the information is available either in the records of the operator or as determined through the use of standard locating techniques other than excavating, otherwise advise the person who contacted the center of the location of the operator's subsurface installations which may be affected by the excavation, or advise the person that the operator does not operate any subsurface installations that would be affected by the proposed excavation.”

5.   Subdivision (b) of Government Code section 4216.3 provides in pertinent part:“Every operator of a subsurface installation who field marks ․ shall make a reasonable effort to make field markings in conformance with the following color code and type of installation:  [¶] (1) Safety Red—electric power, distribution, and transmission installations․”

6.   Subdivision (a) of Government Code section 4216.9 provides:“No permit to excavate issued by any local agency, as defined in Section 4216, or any state agency, shall be valid unless the applicant has been provided an initial inquiry identification number by a regional notification center pursuant to Section 4216.2.   For purposes of this section, ‘state agency’ means every state agency, department, division, bureau, board, or commission, including the Department of Transportation.”

7.   Subdivision (c) of Government Code section 4216.2 provides:“The regional notification center shall provide an inquiry identification number to the person who contacts the center pursuant to this section and shall notify any member, if known, who has a subsurface installation in the area of the proposed excavation.   An inquiry identification number may be validated for more than 14 days when mutually agreed between the excavator and any member operator so notified that has a subsurface installation in the area of the proposed excavation;  and, it may be revalidated by notification to the regional notification center by the excavator prior to the time of its expiration.”

8.   Government Code section 4216.2, subdivision (c).

9.   Subdivision (c) of Government Code section 4216.3 provides:“If, at any time during an excavation for which there is a valid inquiry identification number, an operator's field markings are no longer reasonably visible, the excavator shall contact the appropriate regional notification center.   The regional notification center shall contact any member, if known, who has a subsurface installation in the area of the excavation.   Upon receiving timely notification or renotification pursuant to this subdivision, the operator shall re-locate and re-mark, within two working days, those subsurface installations which may be affected by the excavation to the extent necessary, in conformance with this section.”

10.   It was the uncontroverted testimony of one of the experts that fading was one of the reasons for the statutory time limit.

11.   The complete text of the subdivision is:“Except as otherwise specifically provided in this article, this section is not intended to affect any civil remedies otherwise provided by law for personal injury or for property damage, including any damage to subsurface installations, nor is this section intended to create any new civil remedies for those injuries or that damage.”

SILLS, Presiding Justice.

WALLIN and SONENSHINE, JJ., concur.