Ohio Appellate Court Examines Duties on Inspection for the Existence of Utility Lines

A decision from the Ohio Court of Appeals (Eighth Appellate District--Cuyahoga) clarifies the duties owed by excavators, designers and developers in relation to locating existing utilities. In Opincar v. F.J. Spanulo Constr., 2008 Ohio 6286 (Ohio App. 2008), a residential owner, the Opincars, acting as both developer and general contractor, contracted with Spanulo for the excavation, foundation and concrete work on a project that included the addition of a garage. After the project was complete, the local utility informed the Opincars that the garage was built over a gas line and had to be removed.

The Opincars sued Spanulo, claiming inter alia, breach of contract and negligence. The breach of contract claim centered around the contention that Spanulo, in failing to locate existing utilities, failed to perform its work in a workmanlike manner. The negligence claim was premised upon a theory of negligence per se for failure to check with the local utility and the Ohio Utility Protection Service in accordance with R.C. 3781.25, et seq.

Both sides moved for summary judgment. The court entered summary judgment in favor of the excavator Spanulo as to both counts. As to the breach of contract claim, the court found that, given Spanulo was only acting as the excavation and concrete contractor and not as the developer or general contractor, no implied contractual duty existed on its part to check for utilities. As to the negligence claim, it found that any actionable obligation on an excavator with respect to the utilities was only with regard to the lack of disturbance of the utilities themselves, not the construction in close proximity. As the owner had acted as both general contractor and developer, the court found that any other obligations as to OUPS notification were that of the owner or their designer.

On appeal, the Ohio Court of Appeals affirmed the trial court’s entry of summary judgment in Spanulo’s favor, discussing the duties and liabilities of Spanulo and excavators in general. The Court was clear that had utilities been disturbed, there would be liability on the part of Spanulo. It was only because damages did not flow from harm to a utility line that allowed Spanulo to escape liability.

One can presume that the factual setting in this case is rare. Likely because the project was of a residential nature, the contract was evidently rudimentary and did not allocate responsibility for utility investigation. In many standard form contracts, this issue would be addressed specifically. Nonetheless, the case is instructive as to the utility inspection obligations and the general implied duty of workmanship when the issue is not so specifically addressed in the contract.

Posted by: C. Michael Shull, III

Categories: Current Developments / Legislation