In the event that a landowner plans to do any form of significant work on an area of land, whether cosmetic, such as landscaping, or extensive, the work should be preceded by the contracting of one qualified and certified to inspect the property and physically mark the location of utility cables upon it. This is to prevent damage to the utility cables, and to prevent the costs of repair to the companies which own the cables. Such action invokes the Louisiana Damage Prevention Act – Louisiana Underground Utilities and Facilities Damage Prevention Law.
An incident central to the MCI Communications Services, Inc. v. Hagan case was noted at causing a $20,000 per minute loss to the utility company for every minute the cable was out of commission. It seems rational that the possible negligence and/or trespass in damaging the cable, property owned by a utility company, can cause significant troubles, even if it occurs within the land of the property owner.
The most substantial part involved in this case is the determination of what the definition of trespass and negligence is when a landowner affects the transposed property of the utility company. Without a doubt, a landowner has the right to be on and use the land, but the utility company also has been given the right by law to continue to leave its utility cable in/on the land and continue using it, and retains this right even if the contract for use of the land was made with a previous landowner. If a servitude is involved with having the utility cable in/on the land, then there is a possible claim for Trespass to Land in conjunction with a negligence claim. However, if there is not a servitude, and only a right to continue to use the utility cable on the land exists, then the recourse if damage occurs would be Trespass to Chattels, for destruction to private property, not Trespass to Land, as attempted in this case.
The intent question is one of strict liability, whether the only intent needed is the intent to perform the action; in this case, intentionally using the backhoe and damaging the utility cable. More succinctly, the aforementioned case notes a trespass is “an unlawful physical invasion of property in the possession of another and the only intent required is the trespasser’s intent to perform the act which constitutes the trespass.” Thus, “an individual need only refrain from taking intentional action that results in harm to another.” However, the Louisiana Supreme Court has yet to rule on the intent standard in regard to claims of trespass to underground cables, and hence, the issue at hand. The Certified Question for the Louisiana Supreme Court is:
The proposed jury instruction provides “a respondent can be held responsible for an unintentional trespass which results in a deliberate act,” Under Louisiana law when a person trespasses property which is no subject to a servitude by the owners of the underground cable but only to the contractual right to keep it, as an existing cable, underneath the property?”
The ruling by the Louisiana Supreme Court will not only impact a landowner, but the contractors and excavators who will more commonly perform the excavations, and are more likely to cause damage to underground utility cables. This could also bring up further issues in agency, for if it was to be found that an individual who caused the resulting damage was acting as an agent of another, the principal, then the principal would incur the legal wrath of the utility companies.
Though the Supreme Court of Louisiana has yet to rule on this Certification Question, as to the standard of intent for trespass in this situation, contact the Berniard Law Firm for further information regarding the outcome of this case, for clarification of the Louisiana Damage Prevention Act, and for assistance in determining if your property is subject to similar issues.