Large scale developments often generate a lot of construction debris during the construction of a project. The question is: where does a contractor dispose of this debris? This consideration should be addressed with care, or a contractor can end up with unexpected and potentially considerable liability.

In a recent case before the Indiana Court of Appeals, a farmer sued a party storing construction debris on the farmer's property. The contractor acknowledged breaching its contract with the farmer by storing more material on the property than the parties had agreed and because the contractor only partly restored the condition of the farm field after the project's completion. The dispute, therefore, was over the damages that the farmer could recover.

The debris, which included concrete, rebar, stumps, tires and other non-earthen materials, had damaged the farmer's farm equipment and had rendered the field unusable for agriculture. Accordingly, the farmer sought damages for, among other things, the cost of correcting erosion to the field because of only partial restoration of the property and diminution of value to the real estate. The contractor disputed that the farmer could recover for both, arguing that the damages were not foreseeable results of its conduct and that it amounted to double recovery.

The court agreed with the farmer and awarded the farmer damages that substantially exceeded the actual value of the land in dispute and the value of the contract between the parties. The court reasoned that the farmer was entitled to recover for the cost necessary to repair the damage caused to the land, which can substantially exceed the economic value of the land, particularly if environmental contamination has occurred.

The moral here is to act carefully in addressing this common contracting challenge so a manageable issue does not turn into a costly problem.

Cite for lawyers: Crider & Crider v. Downen, 873 N.E.2d 1115 (Ind. Ct. App. 2007).