Q: When is a fence contrator responsible for underground damages?
Fence contractor dug through my outside sewer line. Contract states they are not liable for unknown obsticles such as sewer lines. My question lies in do they carry any liablity in that they never informed us of the damage and moreover actually placed the fence post and concrete footing into the hole they caused? This action completely blocked the sewer pipe and they are claiming they didn't notice when they dug which is hard to believe.
A:
If their contract says that, and you signed it, then they might not be liable.
But they might not have followed all the consumer protection requirements to give you notice of 3 day right to cancel, etc. If those were required, and they didn't, then that could void their contract, so they might have to refund all of what you paid. Use the Find a Lawyer tab to retain a local attorney who can review the contract for compliance with consumer protection requirements and advise you.
A: The exculpatory clause in the contract must clearly and expressly relieve the fence company from damages for its own negligence. Most likely the clause is not enforceable. In addition, the act of placing the post and pouring concrete may go beyond negligence; may be gross negligence, willful, wanton or reckless, and an exculpatory clause would not relieve the fence contractor from this conduct.
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