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Who is Responsible for a Private Buried Facility Damage?

Every time we give a presentation about the differences between public and private locates, someone never fails to ask the question: “If I hire a private locator, who is responsible for a damage if a privately-owned buried facility was missed during the private locate?”. So, we figured once and for all, we would set the record straight.

There are three players involved in the private locate process that are critical to ensuring that all buried private facilities are marked on private property prior to excavation. These include the Private Landowner, Excavator, and Private Locate Contractor also known as the Private Locator. When damages occur, the liability can lie with one or many of these three parties.

In one of our previous blogs, we described the biggest difference between public locates and private locates as follows, “private locators are often challenged to work blind and have to sleuth out the underground private facility network without any help from the private landowner”. This is a big issue, however, there are many factors that influence the quality of a private locate. These factors can include everything from human errors, lack of information, site conditions, and technological limitations.

We have been part of countless damage investigations on private property, and the following is a summary of some of the factors that influenced the conclusion of our investigations:

Private Landowner’s Liability if:

  • No utility records exist, and the Private Locator must work blind

  • The utility records provided were inaccurate

  • Utility room access or site operations personnel were not provided to the excavator and private locator

  • If a buried facility was not traceable

  • The work area was congested with buried facilities causing an erroneous locate due to distortion

Excavator’s Liability if:

  • The Excavator did not request utility records from the Private Landowner and share them with the Private Locator

  • Utility room access or site operations personnel were not requested and provided to the Private Locator

  • ANY limitation presented to the Excavator by the Private Locator that was not managed properly by the Excavator (i.e. a buried facility could not be traced, and the excavator did not notify the private landowner for direction and proceeded to dig)

Private Locator’s Liability if:

  • The Private Locator was given ACCURATE records from the Landowner and mismarked a private detectable buried facility

  • The Private Locator did not ask for drawings, access, or an interview with site operations personnel

  • The Private Locator did not use industry standard locating equipment and troubleshooting techniques when actively tracing buried facilities

  • The Private Locator missed an obvious private aboveground utility structure shown on a drawing, or such structure was obvious on-site during the investigation

  • The Private Locator did not warn the Excavator of any limitation encountered during the private locate

There are many factors that influence the quality of a private locate and it is not quickly determined who is responsible if a buried facility is missed or marked incorrectly. Only a proper damage investigation can give you a clear picture of who’s responsible if a private locator misses a buried facility within a work area. However, as you can see, communication and the exchange of information is a common thread when determining liability. Most important of all is that each of these parties clearly needs to understand their role in the private locate process.

Typically, the Excavator hires the Private Locates Contractor and most of the communication occurs between the Excavator and Private Locator. The Private Landowner needs to be a part of that conversation, as they must provide important information that can assist the private locate process. In this case, the Excavator acts as the liaison between the Private Landowner and the Private Locator as they are providing a locate for buried infrastructure owned and maintained by the Private Landowner. When all parties contribute to the private locate process, quality increases and the risks are reduced.

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