OMAHA, Neb. (CN) - Fourteen million gallons is a lot of water. Whether its accidental release at a utilities plant in 2023 automatically amounted to negligence by a construction company was the focus of arguments Monday at the Douglas County Courthouse in downtown Omaha.

The release occurred July 25 of that year, after the Metropolitan Utilities District, Omaha's public water and gas service, inked a contract with Hawkins Construction Company, one of the more prominent such businesses in the city, to replace existing infrastructure at the Minne Lusa High Service Pump Station, the utility, known by the acronym MUD, said in its complaint filed this summer in Douglas County District Court.

The contract required the company to coordinate with the district to ensure that two pumping units were operational. But while removing earth, MUD claims, Hawkins did not exercise proper care, and a pressurized pipeline ruptured.

Photos MUD included in the complaint show an eruption of water and a veritable lake forming around the site, leading to an extended shutdown of the Florence Water Treatment Plant, a sprawling complex on the city's north side where the Minne Lusa station sits.

The utility cited three causes of action in its complaint: negligence, breach of contract and res ipsa loquitur - Latin for "the thing speaks for itself," or that the mere fact that the incident occurred is evidence enough of culpability.

Monday's hearing was on that cause of action. In its response filed in August, Hawkins claims MUD's complaint does not say Hawkins exclusively controlled the instrument that caused the rupture, does not specifically say the excavator caused the rupture and does not show the rupture was something that would not ordinarily happen without negligence.

Jeremy Fitzpatrick, representing Hawkins on Monday, argued there were other factors at play, not just the excavator. The pipe was pressurized, for example.

It is not plausible for the utility to argue that, at a plant it owned, operated and coordinated construction activities for, "there is no way that pipe would burst, and it must have been Hawkins' negligence, and there is no other explanation," Fitzpatrick, of the Omaha firm Kutak Rock, said.

Fitzpatrick also argued MUD was "very loose" on the issue of instrumentality, or what specifically caused the break.

"In some places, they imply it was the excavator's instrumentality; in other places ... they say it was the work as a whole that was the instrumentality."

In its response, the utility said it had incorporated the needed elements in the other claims and that Hawkins was "fairly on notice that the instrumentality at issue in the district's res ipsa loquitur claim is the excavator." And in court Monday, Jacob Zylstra, arguing for MUD, pointed out that the pictures inserted in the complaint showed the excavator in question.

"I think it's obvious on its face that 14 million gallons being released and damaging a few million dollars of property is something that would raise some eyebrows but also be the result of somebody's negligence," said Zylstra, of the Omaha firm Fraser Stryker.

Douglas County District Court Judge Peter Bataillon asked Zylstra about who had control of the pipe. Zylstra allowed that MUD had control of the valves that controlled water going into the pipe but said Hawkins was aware of the pipe and was responsible for coordinating its work with the district so that the district could reconfigure the facility to prevent such an incident.

"The contract between the parties required Hawkins to manage and direct their activities with the added burden of coordinating their construction activities with the district," he said.

Discussion of the possibility of the break being caused by the removal of dirt around the pipe prompted another question from Bataillon.

"What happens if the pipe was already cracked beforehand? And just by removing the dirt, that caused some kind of support structure for that pipe?" he asked. "Was it Hawkins' fault, then, that it happened?"

Said Zylstra: "All else being equal, I would agree it would not be Hawkins' fault. However, that's an evidentiary thing appropriate for summary judgment."

Any removal of earth support for a pressurized pipe is a problem, he said. He reiterated what he said was Hawkins' burden to coordinate with the utility.

Bataillon did not immediately render a decision and said he would take the matter under advisement.

Both MUD and Hawkins are Omaha institutions. Nebraska's Legislature formed the utility in 1921. It provides drinking water to nearly 230,000 customers and is the fifth-largest gas utility in the United States, it says on its website. Hawkins is a family business that traces its history to 1922 and lists online a roster of buildings and highways that Omahans work in and drive on every day.

Source: Courthouse News Service