By Gretchen Schuldt
No, mowing the lawn does not require a call to Digger's Hotline three days before that first blade is cut, according to a State Court of Appeals decision.
Such a requirement would "lead to absurd results," District III Court of Appeals Judge Mark A. Seidl wrote for a three-member panel. He was joined by Appeals Judges Lisa K. Stark and Thomas M. Hruz.
The decision means that Polk County won't have to pay for the damage its workers did to two pieces of equipment owned by Lakeland Communications Group LLC while the workers were mowing along a highway right-of-way.
Under previous court rulings, counties are protected from liability for any mowing mishaps for which they are responsible.
Lakeland, in its effort to collect $1,791.21 in damages, alleged that the county was negligent because it did not contact Digger's Hotline at least three days before mowing, as state law requires for excavation work. The requirement gives utilities time to mark the locations of underground equipment so it is not damaged during excavation.
Lakeland argued that the county's mowing operation was excavation because vegetation on the ground was moved or removed.
Polk County Circuit Judge Jeffery L. Anderson, in rejecting Lakeland's small claims complaints, ruled that "excavation" did not mean mowing the grass or trimming the trees. It means actual moving of dirt and earth, he said.
The appeals panel agreed. The Legislature, in adopting the Digger's Hotline law, did not include the word "vegetation," which it easily could have done, Seidl wrote.
"Lakeland’s expansive interpretation would create ambiguity and impose wide-ranging consequences if adopted," he wrote.
If simply moving material that is on the ground constitutes excavation, as Lakeland contended, "then anyone planning to rake leaves or mow a lawn would be required to call Digger’s Hotline" Seidl said.
Such a requirement, as the Wisconsin Counties Association said in a friend of the court brief, “would result in a flood of inquiries” to Digger’s Hotline, impose "an additional utility tax on Wisconsin's citizens," and would force significant changes to public mowing operations, Seidl said.
Gretchen Schuldt is executive director of the Wisconsin Justice Initiative.
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