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  "name": "CONTINENTAL TELEPHONE COMPANY OF NORTH CAROLINA, A corporation, Plaintiff v. CARLYLE GUNTER, d/b/a CARLYLE GUNTER BULLDOZING, Defendant",
  "name_abbreviation": "Continental Telephone Co. of North Carolina v. Gunter",
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    "judges": [
      "Chief Judge HEDRICK and Judge PARKER concur."
    ],
    "parties": [
      "CONTINENTAL TELEPHONE COMPANY OF NORTH CAROLINA, A corporation, Plaintiff v. CARLYLE GUNTER, d/b/a CARLYLE GUNTER BULLDOZING, Defendant"
    ],
    "opinions": [
      {
        "text": "COZORT, Judge.\nThe plaintiff sued to recover damages caused by the defendant\u2019s alleged negligence in severing underground telephone cables. On appeal the plaintiff contends that the trial court erred in directing a verdict for the defendant. We agree.\nThe defendant, Carlyle Gunter, contracted with the Frontier Trading Post to raise the level of its parking lot, which necessitated removal of the old asphalt. On 2 May 1986, one of Gunter\u2019s employees was operating a bulldozer with a ripper attachment. While working in the west entrance of the parking lot, where it adjoins U.S. Highway 441, he severed and pulled from the ground plaintiff\u2019s fiberoptic cable.\nOn 11 February 1987, the plaintiff filed a complaint, alleging that the defendant \u201cknew or should have known of the location of the Plaintiff\u2019s cable\u201d and seeking $7,030.60 in damages. The defendant denied liability. At trial plaintiff sought to read to the jury the provisions of the Underground Damage Prevention Act (the Act). The defendant\u2019s objection to the admission of the Act was sustained; no basis for the objection or rationale for the trial court\u2019s ruling appears in the transcript. At the close of the plaintiff\u2019s evidence, the defendant moved for a directed verdict on the grounds that the plaintiff failed to produce sufficient evidence that the defendant had breached a duty owed to the plaintiff. The trial court granted that motion.\nOn appeal the plaintiff first assigns as error the trial court\u2019s refusal to allow portions of the Act to be read in evidence. \u201cWhen a statute provides that under certain circumstances particular acts shall or shall not be done, it may be interpreted as fixing a standard for all members of the community from which it is negligence to deviate.\u201d Prosser and Keeton on the Law of Torts \u00a7 36 (5th ed. 1984); see also Pinnix v. Toomey, 242 N.C. 358, 362, 87 S.E.2d 893, 897 (1955); and Jackson v. Housing Authority of High Point, 73 N.C. App. 363, 368, 326 S.E.2d 295, 298, disc. review denied, 313 N.C. 603, 330 S.E.2d 610 (1985), aff\u2019d, 316 N.C. 259, 341 S.E.2d 523 (1986). Statutes are admissible, if relevant. C.C.T. Equipment Co. v. Hertz Corp., 256 N.C. 277, 286, 123 S.E.2d 802, 809 (1962). They \u201cmay be read in evidence from the printed statute books.\u201d N.C. Gen. Stat. \u00a7 8-1 (1989).\nThe Underground Damage Prevention Act provides in part as follows:\n(a) Except as provided in G.S. 87-106, before commencing any excavations in highways, public spaces or in private easements of a utility owner, a person planning to excavate shall notify each utility owner having underground utilities located in the proposed area to be excavated, either orally or in writing, not less than two nor more than 10 working days prior to starting, of his intent to excavate.\nN.C. Gen. Stat. \u00a7 87-102 (1989) (emphasis added).\n(a) Except as provided in G.S. 87-106, no person may excavate in a highway, a public space, or a private easement of a utility owner without first having given the notice required in G.S. 87-102 to the utility owners.\n(b) In addition to the notification requirements, each person excavating shall:\n(1) Plan the excavation to avoid damage and to minimize interference with underground utilities in and near the construction area, to the best of his abilities;...\nN.C. Gen. Stat. \u00a7 87-104 (1989) (emphasis added).\nAn association [sponsored by utility owners] shall record with the Register of Deeds of each county in which participating utility owners own or operate underground utilities, a notarized document providing the telephone number and address of the association, a description of the geographical area served by the association, and a list of the names and addresses of the utility owners receiving these services from the association.\nN.C. Gen. Stat. \u00a7 87-109 (1989).\n(a) Each utility owner having underground utilities in North Carolina shall record a notarized document containing the name of the utility owner and the title, address, and telephone number of its representatives designated to receive the written or oral notice of intent to excavate, with the Register of Deeds of each county in which the utility owner owns or operates underground facilities.\nN.C. Gen. Stat. \u00a7 87-110 (1989). We conclude that the Act is relevant to the issue of negligence in the case below and that pertinent portions of it should have been admitted in evidence.\nDefendant contends that the Act is irrelevant to the case below. He argues, on one hand, that the Act adds nothing to the common law duty to exercise ordinary care, and, on the other, that, if the Act does establish a duty owed by all excavators to utility owners, defendant\u2019s activities were not \u201cexcavation\u201d within the meaning of the Act. We reject both arguments.\nThe language of the Act is mandatory: \u201c[A] person planning to excavate shall notify each utility owner having underground utilities located in the proposed area to be excavated . . . .\u201d N.C. Gen. Stat. \u00a7 87402(a) (1989) (emphasis added). The activities defendant undertook do not fall within the exceptions listed in \u00a7 87-106 of the Act, which exempts agricultural tilling, certain excavations by the State or utility owners, some pole replacements, and certain emergency work. Finally, N.C. Gen. Stat. \u00a7 20-4.01(13) defines highway as the \u201centire width between property or right-of-way lines,\u201d and the defendant conceded at trial that his employee \u201cwas working in the highway right-of-way.\u201d\nN.C. Gen. Stat. \u00a7 87-101(3) defines excavation as \u201can operation for the purpose of the movement or removal of earth ... in or on the ground by use of equipment operated by means of mechanical power.\u201d Defendant correctly notes that \u201croad maintenance\u201d is excluded from the definition of \u201cexcavation\u201d found in \u00a7 87-101(3). The defendant contends that his \u201cwork was repair and resurfacing\u201d and thus \u201croad maintenance.\u201d That argument is disingenuous. The defendant contracted to improve the parking lot of a private property owner. His performance of that contract was not road maintenance as defined by N.C. Gen. Stat. \u00a7 87-101(10): \u201cpreservation, including repairs and resurfacing of a highway.\u201d\nThus, the trial court erred in directing a verdict for the defendant. The Act, which plaintiff sought to read in evidence, established a duty owed by defendant to plaintiff. At trial plaintiff brought forward evidence that it had complied with the recording requirements of the Act (\u00a7\u00a7 87-109 and -110). The defendant conceded at trial that he did not notify the plaintiff that he was \u201cgoing to excavate on a highway right-of-way at the Frontier Trading Post\u201d before he began work. A directed verdict for the defendant \u201cmay be granted only if, as a matter of law, the evidence is insufficient to justify a verdict\u201d for the plaintiff. Dickinson v. Pake, 284 N.C. 576, 583, 201 S.E.2d 897, 902 (1974). The proffered evidence in the case below showed a duty owed to plaintiff, and defendant concedes he did not comply with that duty. That evidence is sufficient to justify a verdict for plaintiff.\nFor the reasons stated above the trial court\u2019s Judgment of directed verdict is reversed and the case is remanded for a new trial.\nReversed and remanded for new trial.\nChief Judge HEDRICK and Judge PARKER concur.",
        "type": "majority",
        "author": "COZORT, Judge."
      }
    ],
    "attorneys": [
      "Van Winkle, Buck, Wall, Starnes and Davis, P.A., by Larry C. Harris, Jr. and Mark A. Pinkston for plaintiff appellant.",
      "Haire and Bridgers, P.A., by R. Phillip Haire, for defendant appellee."
    ],
    "corrections": "",
    "head_matter": "CONTINENTAL TELEPHONE COMPANY OF NORTH CAROLINA, A corporation, Plaintiff v. CARLYLE GUNTER, d/b/a CARLYLE GUNTER BULLDOZING, Defendant\nNo. 8930DC916\n(Filed 7 August 1990)\n1. Telecommunications \u00a7 3 (NCI3d)\u2014 parking lot excavation \u2014 severing of telephone cable \u2014admissibility of Underground Damage Prevention Act\nThe trial court erred in a negligence action arising from the severing of a telephone cable during the removal of old asphalt from a parking lot by not admitting into evidence portions of the Underground Damage Prevention Act, which requires a person planning to excavate to notify each utility owner having underground utilities located in the proposed area. The language of the act is mandatory; the activities defendant undertook do not fall within the exceptions listed in the Act; defendant contracted to improve the parking lot of a private property owner and his performance of that contract was not road maintenance; and the Act is relevant to the issue of negligence. N.C.G.S. \u00a7 87-102(a), N.C.G.S. \u00a7 87-106, N.C.G.S. \u00a7 20-4.01(13), N.C.G.S. \u00a7 8-1.\nAm Jur 2d, Electricity, Gas and Steam \u00a7 222; Telecommunications \u00a7 36.\n2. Telecommunications \u00a7 3 (NCI3d(\u2014 construction \u2014 severing of telephone cable \u2014 negligence action\nThe trial court erred in a negligence action arising from the severing of a telephone cable during the removal of old asphalt from a parking lot by granting a directed verdict for defendant where the Underground Damage Prevention Act, which plaintiffs sought to read into evidence, established a duty owed by defendant to plaintiff; plaintiff brought forward evidence that he had complied with the recording requirements of the Act; and defendant conceded at trial that he did not notify plaintiff that he was going to excavate on a highway right of way before he began work.\nAm Jur 2d, Electricity, Gas and Steam \u00a7 222; Telecommunications \u00a7 36.\nAPPEAL by plaintiff from Judgment of Judge John J. Snow, Jr., entered 23 May 1989 in JACKSON County District Court. Heard in the Court of Appeals 12 March 1990.\nVan Winkle, Buck, Wall, Starnes and Davis, P.A., by Larry C. Harris, Jr. and Mark A. Pinkston for plaintiff appellant.\nHaire and Bridgers, P.A., by R. Phillip Haire, for defendant appellee."
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  "file_name": "0741-01",
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