Consumer Protection Risks for Excavation Contractors
Kegler Brown Construction Newsletter February 1, 2001
Excavating contractors performing work on commercial or public works projects typically give no thought to potentially being subject to the Consumer Sales Practices Act ("CSPA"), however a recent Court of Appeals decision from Hamilton County has ruled that contractors may be subject to the CSPA when they deal with residents of the adjacent property with respect to their dumping and fill activities. Williams v. Edwards (1998), 129 Ohio App.3d 116.
In that case, the excavating contractor entered into agreements with neighboring property owners where he would be allowed to dump fill dirt during the course of his highway construction project in exchange for performing later improvements such as landscaping and replacement of driveways. No money was to change hands as a part of that transaction. Nevertheless, the Court of Appeals ruled that because the excavator's services were for the property owners' "personal use," the CSPA applied, meaning that any violation would expose the excavating contractor to potential liability for treble damages and attorney's fees.
This ruling means that contractors who deal with consumers on an exchange basis out in the field need to be careful to avoid violations of the CSPA.