Vandeventer Black Partner John Lockard recently penned the following summary of potential criminal liability concerns associated with underground utility work in Virginia:
POTENTIAL CRIMINAL LIABILITY FOR DAMAGE TO UNDERGROUND UTILITIES
Any contractor performing work that involves disturbing the ground faces the risk of damaging underground utilities. Even with technological advancements, the marking of underground utilities can often seem more like an art than a science. Contractors should be prepared to address the liabilities that can arise from the damage to an underground utility, including potential criminal charges.
In addition to the liability for the costs to repair the utilities under the Virginia “Miss Utility” statute, some localities have been pursuing criminal charges against contractors for violation of the statewide fire prevention code. Charges have been issued for the “unauthorized discharge, release, disposal, or spill of hazardous material” caused by damage to a utility line, especially in cases of damage to natural gas lines. Localities may be more inclined to pursue criminal charges if the fire department or other emergency response units are called to the scene. In addition to the criminal penalty, the statewide fire prevention code and the local statutes allow for the recovery of the locality’s response costs.
The criminal charges are often filed against the on-site supervisor or equipment operator. A criminal charge against an employee may have serious consequences for both the employee and the contractor. A violation of the statewide fire protection code is a Class 1 misdemeanor that can result in a fine of up to $2,500 and a sentence of up to a year in jail. A guilty plea in the criminal action may also be admissible as part of a civil action to collect damages by the utility.
All contractors should take notice if any of their employees receive a summons relating to damage to an underground utility. The summons may appear to be a simple violation of a local ordinance, but may actually involve criminal charges against the employee with possible civil consequences for the company. Contractors should carefully evaluate the potential criminal and civil liability resulting from damage to an underground utility and consult with legal counsel experienced in these matters.