Recently, the First Appellate District confirmed that a failure to contact Ohio Utility Protection Service (OUPS) is a breach of an excavator’s duty of care and the plaintiff was entitled to recover the amount of damages caused by this breach. 

In Cincinnati Bell Telephone Co., LLC. v. J.K. Meurer Corp. [1], a contractor (J.K Meurer Corp) was grinding and repaving a driveway when it sliced underground utilities belonging to Cincinnati Bell Telephone Company (Cincinnati Bell). The contractor had not contacted OUPS prior to the work because they were not “grinding the asphalt as deep as the wire was supposed to be.” However, in the course of grinding the asphalt, the contractor’s equipment sliced the utility cable belonging to Cincinnati Bell. Cincinnati Bell sued the contractor for damages resulting from the contractor’s failure to notify OUPS before grinding the driveway asphalt.

The key issue of this case was the definition of “demolish.” Ohio Revised Code 3781.28(A), establishes a definitive standard of care for excavators by requiring excavators to contact OUPS before excavating. Ohio Revised Code (ORC) 3781.25(I) defines excavation as “the use of tools, power equipment, or explosives to move earth, rock, or other materials in order to penetrate, bore, or drill into the earth or to demolish any structure whether or not it is intended that the demolition will disturb the earth.” In this case, J.K. Meurer argued that it did not breach its standard of care since it was “grinding” asphalt and removing asphalt, which is separate from demolishing the structure.

The First Appellate District rejected J.K. Meurer’s argument citing an Ohio Supreme Court case, which held that “words and phrases left undefined in a statue ‘are to be given their common, ordinary, and accepted meaning’”[2] The Appellate Court concluded that the common statutory meaning of a driveway is a structure, and therefore, found that the “grinding” of the driveway is within the definition of “demolish” as contemplated by ORC 3781.25(I).

Accordingly, the First Appellate District held that the failure to notify OUPS before “grinding” operations, regardless of the depth of the utility, is breach of duty of care required by excavators. Therefore, the contractor breached their duty of care and was liable for the damages resulting from their failure to notify OUPS before excavating.

The implications of this ruling impact traditional excavation operations but also asphalt milling and filling operations. The intent of an operation does not excuse a contractor’s duty to contact OUPS. Therefore, contractors must contact OUPS before any operation that has the potential to penetrate, bore, or drill into the earth or to demolish any structure.

[1] Cincinnati Bell Telephone Co., v. J.K. Meurer Corp., 2022-Ohio-540.
[2] State v. Black, 142 Ohio St. 3d 332, 2015-Ohio-513, 30 N.E. 3d 918, 39

[View source.]