dissenting.
{¶ 44} I dissent. This case calls for an application, not an extension, of United States v. Spearin (1918), 248 U.S. 132, 39 S.Ct. 59, 63 L.Ed. 166. As in all Spearin Doctrine cases, the fault in this case lies with the owner’s plans. It requires no leap to find that the state implicitly warranted that its plans were buildable and that that warranty prevailed over general contract provisions. An owner’s plans and specifications must be reliable for the contractual process to work. The majority seems to suggest that an owner need not be concerned with preparing accurate plans, since any deficiencies must be corrected by the contractor. As it turns out, the state could have saved a lot of money on blueprints and just submitted some sketches on the backs of a few cocktail napkins.
{¶ 45} In Spearin, the contract at issue required the contractor to relocate a section of sewer piping as part of the construction of a dry dock at the Brooklyn Navy Yard. The contract included specific provisions regarding the dimensions, material, and location for the new section of the sewer pipe. Id. at 133-134, 39 S.Ct. 59, 63 L.Ed. 166. The contract also required Spearin, the contractor, to examine the site and check the plans and specifications. Id. at 137, 39 S.Ct. 59, 63 L.Ed. 166. Neither the government nor Spearin was aware that the design of the existing sewer system caused a large amount of water to be diverted into the pipe that was to be replaced during periods of heavy water flow. Id. at 134, 39 S.Ct. 59, 63 L.Ed. 166. The government knew that the sewers in the area of the dry dock had occasionally overflowed in the years prior to the start of construction, but it never told Spearin. Id. Spearin complied with the contract requirements for the relocation of the sewer pipe, including the location, dimensions, and materials required by the government. Id.
{¶ 46} The relocated sewer line proved inadequate and burst in several places after a heavy rainfall, flooding the excavation for the dry dock. Id. Spearin refused to continue working on the project until the government rectified the sewer-line situation. Id. at 135, 39 S.Ct. 59, 63 L.Ed. 166. The government argued that the responsibility of remedying existing conditions rested with the *236contractor. Id. Because Spearin refused to restore the sewer and continue work, the government annulled the contract. Id.
{¶ 47} Spearin sets forth the general rule of law that the contractor usually assumes the risk of work-site conditions: “Where one agrees to do, for a fixed sum, a thing possible to be performed, he will not be excused or become entitled to additional compensation, because unforeseen difficulties are encountered. * * * Thus one who undertakes to erect a structure upon a particular site, assumes ordinarily the risk of subsidence of the soil.” Spearin, 248 U.S. at 136, 39 S.Ct. 59, 63 L.Ed. 166.
{¶ 48} But when the contractor’s difficulties are a result of faulty specifications by the government, the burden changes: “But if the contractor is bound to build according to plans and specifications prepared by the owner, the contractor will not be responsible for the consequences of defects in the plans and specifications.” Spearin, 248 U.S. at 136, 39 S.Ct. 59, 63 L.Ed. 166. “[T]he insertion of the articles prescribing the character, dimensions and location of the sewer imported a warranty that if the specifications were complied with, the sewer would be adequate. This implied warranty is not overcome by the general clauses requiring the contractor to examine the site, to check up the plans, and to assume responsibility for the work until completion and acceptance. * * * The duty to check plans did not impose the obligation to pass upon their adequacy to accomplish the purpose in view.” (Footnotes omitted.) Id.
{¶ 49} Under Spearin, construction changes caused by unexpected site conditions remain the responsibility of the contractor. But when the government’s plans themselves are the cause of turmoil, things change: “Justice Brandéis recognized [in Spearin] that a contractor might well agree to assume risks relevant to design. By stating in his opinion that one who undertakes to erect a structure upon a particular site ‘assumes ordinarily the risk of subsidence of the soil,’ * * * Justice Brandéis recorded the obvious assumption that the contractor’s responsibility for contract completion begins where the owner’s detailed design ends. In essence, the Court recognized that the contractor’s right to recovery for the owner’s breach of its implied warranty of the adequacy of design was conditioned upon the contractor’s reasonable reliance upon the owner’s defective design in preparing its bid and in doing the work.” 3 Bruner & O’Connor on Construction Law (2002), Section 9:78.
{¶ 50} The majority claims that in S & M Constr., Inc. v. Columbus (1982), 70 Ohio St.2d 69, 70, 24 O.O.3d 145, 434 N.E.2d 1349, this court “observed that the Spearin Doctrine does not invalidate an express contractual provision.” Majority opinion at ¶ 30. No. In S & M, this court held that the case was distinguishable from Spearin and other cases “in which errors appeared in portions of the contract — particularly, in the plans, specifications, or blueprints.” (Emphasis *237sic.) S & M at 72, 24 O.O.3d 145, 434 N.E.2d 1349. And the court found that the construction delays were not a product of the owner’s plans.
{¶ 51} S & M was a classic case of “ ‘Where one agrees to do, for a fixed sum, a thing possible to be performed, he will not be excused or become entitled to additional compensation, because unforeseen difficulties are encountered.’ ” S & M at 70, 24 O.O.3d 145, 434 N.E.2d 1349, quoting Spearin, 248 U.S. 132, 136, 39 S.Ct. 59, 63 L.Ed. 166.
{¶ 52} In S & M, construction complications arose out of conditions that were outside the contract. S & M successfully bid on a sewer-construction project for the city of Columbus. The city made subsurface reports available to all bidders upon request. The reports analyzed subsurface borings done on either side of the centerline of the project. S & M, 70 Ohio St.2d at 69, 24 O.O.3d 145, 434 N.E.2d 1349. But the city limited the prospective contractors’ reliance on those reports. A provision of the contract at issue stated:
{¶ 53} “Said borings, test excavations, and other subsurface investigations, if any, are incomplete, are not a part of the contract documents, and are not warranted to show the actual subsurface conditions. The Contractor agrees that he will make no claim against the City or the Engineer if, in carrying out the work, he finds that the actual subsurface conditions encountered do not conform to those indicated by said borings, test excavations, and other subsurface investigations.” Id. at 70, 24 O.O.3d 145, 434 N.E.2d 1349.
{¶ 54} During construction, S & M encountered subsurface conditions — inflows of water and concretions — that caused construction delays and additional costs. Id. at 69, 24 O.O.3d 145, 434 N.E.2d 1349. The trial court concluded that S & M had no right to rely on the subsurface reports as complete, as part of the contract documents, or as a warranty by the city of actual subsurface conditions.
{¶ 55} In S & M, the subsurface-conditions report was specifically excluded from the contract. The contractor could therefore not claim that the delays and additional expense were a product of the city’s plans.
{¶ 56} In Carrabine Constr. Co. v. Chrysler Realty Corp. (1986), 25 Ohio St.3d 222, 25 OBR 283, 495 N.E.2d 952, the other Ohio case cited by the majority, the delay was caused by a need to have the construction site rezoned, which by contract was the responsibility of the contractor.
{¶ 57} Here, the principal cause of the delay, as determined by the finder of fact, was “an excessive number of errors, omissions and conflicts in the design documents furnished to bidders by the state and incorporated into [Dugan & Meyers’s] contracts.” There were no shifting sands, no acts of God, no surprising aquifers. As in Spearin, the designs themselves were the root of the problem. Here, the contract contained procedures for dealing with design problems, but *238like the overburdened sewer pipe in Spearin, the procedure buckled under the torrent of required design changes.
Thompson Hiñe, L.L.P., Peter D. Welin, Daniel F. Edwards, and Michael W. Currie, for appellant. Marc Dann, Attorney General, Douglas R. Cole, State Solicitor, and William C. Becker, Assistant Attorney General; and Vorys, Sater, Seymour & Pease, L.L.P., David S. Cupps, Joseph A. Brunetto, and William G. Porter II, for appellees. Schottenstein, Zox & Dunn and Roger L. Sabo, urging reversal for amici curiae Associated General Contractors of Ohio and Ohio Contractors Association, Mechanical Contractors Association, and Cincinnati Sheet Metal Contractors Association. Taft, Stettinius & Hollister, L.L.P., Fred A. Ungerman Jr., and Jill A. May, urging reversal for amici curiae Associated Builders and Contractors, Inc., and its Central Ohio, Ohio Valley, and Northern Ohio Chapters. O’Rourke & Associates Co., L.P.A., Michael J. Warrell, and R. Russell O’Rourke, urging reversal for amicus curiae American Subcontractors Association. Baker & Hostetler, L.L.P., Elliot S. Azoff, and Kelly M. King, urging reversal for amici curiae Construction Employers Association et al. McFadden, Winner & Savage and James S. Savage, urging reversal for amicus curiae National Electrical Contractors’ Association, Ohio Conference. Frantz Ward, L.L.P., Ian H. Frank, and James T. Dixon, urging reversal for amicus curiae Surety Association of Ohio. Shumaker, Loop & Kendrick, L.L.P., Robert A. Koenig, and Megan A.F. Bula, urging reversal for amici curiae Toledo Area Carpenter Employers Association, Inc. et al. Graydon, Head & Ritchey, L.L.P., and J. Jeffrey Landen, urging reversal for amicus curiae Allied Construction Industries.{¶ 58} Certainly, dealing with minor design changes was anticipated in the contract. Dealing with unbuildable plans was not. Spearin does not apply to instances in which job interruptions are minor. The trier of fact in this case found that the design mistakes were not minor and that they were the cause of the delay. That is the essential question of Spearin — did the owner’s plans cause the problem? Clearly in this case they did, and the trial court correctly applied Spearin.
Cors & Bassett, L.L.C., Curtis L. Cornett, and David L. Barth, urging reversal for amici curiae Independent Electrical Contractors of Central Ohio, Greater Cincinnati, Northern Ohio, and Western Reserve Chapters. Bricker & Eckler, L.L.P., Jack Rosati Jr., and Maureen P. Taylor, urging affirmance for amici curiae Ohio Municipal League, Ohio School Boards Association, Buckeye Association of School Administrators, and Ohio Association of School Business Officials.