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BELL ATLANTIC WASH. v. NAZARIO CONST.

August 13, 1998

BELL ATLANTIC-WASHINGTON, D.C., INC., APPELLANT,
V.
NAZARIO CONSTRUCTION CO., INC., APPELLEE.



APPEAL FROM THE SUPERIOR COURT, RICHARD S. SALZMAN, J. [716 A2d Page 192]

Before Wagner, Chief Judge, Schwelb, Associate Judge, and Gallagher, Senior Judge.

The opinion of the court was delivered by: Schwelb, Associate Judge:

On or about September 21, 1993, employees of Nazario Construction Company, Inc. who were participating in a major excavation and reconstruction project in the area of 32nd and Q Streets in northwest Washington, D.C. drove several "form pins," or spikes, into underground telephone cables owned by Bell Atlantic-Washington, D.C., Inc., and caused damage to the cables. On July 14, 1994, Bell Atlantic brought suit against Nazario, alleging negligence. Specifically, Bell Atlantic alleged in its complaint that Nazario breached its duty of care to excavate in a manner which would avoid damaging Bell Atlantic's clearly marked underground facilities.

Nazario denied that it was negligent, and took the position that it was Bell Atlantic's obligation to ensure that its cables were so located as to avoid damage to them during the excavation project. Nazario expected to call expert witnesses to establish that Bell Atlantic had this duty, and to show that, even if Nazario was negligent, the damage to the cables was the result of Bell Atlantic's contributory negligence.

On March 18, 1997, the case was tried before a judge sitting without a jury. At the conclusion of the plaintiff's case, the trial judge entered judgment in favor of Nazario upon the ground that Bell Atlantic had failed to present expert testimony establishing the applicable standard of care. On appeal, Bell Atlantic contends, as it did at trial, that expert testimony was not required. Concluding that the standard of care required of one in Nazario's position is established by statute and that Bell Atlantic presented evidence that the statute was violated, we reverse.

I.

Nazario conceded at trial that its employees pounded spikes into Bell Atlantic's cables, which were located about fourteen inches from the surface of the road. The parties stipulated that Bell Atlantic had marked the location of its facilities in the area where Nazario was performing its work. There was testimony that prior to the accident, progress meetings were held between District of Columbia officials, representatives of affected utilities (including Bell Atlantic), and various contractors, including Nazario. A witness for Bell Atlantic testified that the participants discussed, among other subjects, the question whether Bell Atlantic would have to move its cables, and that an unnamed representative of the District of Columbia government advised Bell Atlantic that relocation would not be necessary.

During pretrial proceedings, the parties focused primarily on the amount of damages, and most of Bell Atlantic's evidence at trial related to that issue. Bell Atlantic presented no expert or other testimony to establish the applicable standard of care. At the conclusion of the plaintiff's case, counsel for Nazario asked the court to enter judgment in Nazario's favor because, in counsel's view, Bell Atlantic had failed to prove that Nazario had been negligent. Bell Atlantic's attorney responded that there was no doubt that Nazario caused the damage to Bell Atlantic's [716 A2d Page 193]

cables, and that "[t]he duty at the time of digging lies as a matter of law and statute on the party doing the digging and not [on] Bell Atlantic." The judge held that expert testimony was required to establish the applicable standard of care, and granted judgment in favor of Nazario. *fn1 Bell Atlantic filed a timely notice of appeal. *fn1

II.

Bell Atlantic's sole claim in this case is that Nazario was negligent in that it failed to carry out its statutory obligation to plan and carry out its excavation in a manner that avoided damage to Bell Atlantic's cables. "The plaintiff in a negligence action bears the burden of proof on three issues: the applicable standard of care, a deviation from that standard by the defendant, and a causal relationship between that deviation and the plaintiff's injury." Toy v. District of Columbia, 549 A.2d 1, 6 (D.C. 1988) (citation and internal quotation marks omitted). The trial judge ruled in this case that, as a matter of law, expert testimony was required to prove the applicable standard of care. We disagree. "Proof of a deviation from the applicable standard of care need not include expert testimony where the alleged negligent act is 'within the realm of common knowledge and everyday experience.'" Id. (quoting District of Columbia v. White, 442 A.2d 159, 164 (D.C. 1982)) (other citations omitted). In the situation before us, the standard of care was established by statute, see, e.g., Zhou v. Jennifer Mall Restaurant, Inc., 534 A.2d 1268, 1273 (D.C. 1987), and on these facts expert testimony was unnecessary.

The District's Underground Facilities Protection Act (UFPA), D.C.Code §§ 43-1701 et seq. (1998), provides that each person responsible for an excavation or demolition operation shall

(1) Plan the excavation or demolition to avoid damage to or minimize ...


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