By Michael C. Loulakis and Lauren P. McLaughlin

Contractors, design professionals, and project owners have different roles and responsibilities when it comes to site safety. When a court is asked to decide who is legally responsible for site safety on a particular case, it looks to not only statutes and case law but must consider what contract terms govern. Additionally, a party’s actions on the project site may establish responsibility, even if such responsibility would not otherwise exist by law or under the contract. Given that the legal issues are highly fact-dependent, jobsite safety cases have been a heavily litigated issue for decades and continue to be.

Who is ultimately liable for project safety?

While contractors typically have overall responsibility for project safety, project owners generally limit their own responsibility for injured worker lawsuits by designating the prime contractors and architect/engineers as “independent contractors,” such that the owner is not responsible for their actions. Likewise, A/Es typically include language in their contracts with project owners saying they are not responsible for the contractor’s means, methods, and procedures, including matters of safety, and that the contractor is solely responsible for site safety.

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However, those types of contract provisions may be of limited help when a personal injury or death occurs. Injured workers or their estates typically sue all parties potentially involved in accidents. While an A/E can try to get the case against it dismissed before trial, the plethora of facts associated with the accident can make that a challenge. Stated differently, it is a factual question for a judge or jury to determine if the A/E’s actions or inactions create legal exposure to the injured worker.

Consider the following trio of recent decisions that highlight trends in suits brought against AEs. The first decision involves a suit against an architect concerning its weekly site visits and whether that architect owed a duty to ensure the safety of a subcontractor’s employee. The second decision involved a suit against an engineering firm that was responsible for monitoring highway work for a state agency when a construction worker was killed. The third decision stems from an engineering firm’s payment to settle a claim by injured workers – and its subsequent legal battle to get one of its insurance carriers to reimburse it for the payment.

Does an architect’s weekly site visits mean that it is legally responsible to ensure worksite safety of the project?

The Louisiana Supreme Court recently had occasion to consider this question in Bonilla v. Verges Rome Architects. The dispute in this case stems from the renovation project of a municipal building by the city of New Orleans. The city’s prime contractor engaged Meza Services Inc. to perform the demolition scope of work. The city also entered into a design contract with Verges Rome Architects, who in turn hired a subconsultant, Morphy Makofsky Inc.

During construction, a Meza employee was performing demolition work in a 10-foot-by-10-foot cinderblock concrete room with a 9-foot-high concrete slab ceiling. While the employee was performing the work, his supervisor instructed him to stand on the vault’s ceiling with a hydraulic jackhammer and continue the demolition work. Soon after, the structure caved in causing injuries to the employee. He sued VRA and MMI, alleging negligence in the preparation and approval of the design plans and specifications, the failure to design and/or require support for the area being demolished, and the failure to monitor and supervise the execution of the plans to ensure safety at the jobsite.

VRA brought a pretrial motion seeking a ruling from the court that it owed no duty to oversee, supervise, or maintain the construction site or the worker’s safety. The trial court granted the motion, but the Louisiana Court of Appeal reversed, finding genuine issues of material fact as to “VRA’s awareness the vault was being demolished in an unsafe manner and that deviations from the relevant contractual provisions/specifications had occurred.”

VRA appealed to the Louisiana Supreme Court, which began its analysis by inquiring whether there was a duty owed to an employee of a contractor by an engineer or architect, which ultimately would be determined by the parties’ contract. The worker argued that VRA was contractually required to make weekly site visits and supervise and report any deviations from design specifications to ensure worksite safety.

VRA countered that its contract did not make it responsible for means and methods of construction and site safety and that its contract only imposed a duty to ensure that the city “will have the building it had contracted for.”

The Louisiana Supreme Court agreed with VRA, finding that the contract imposed no duty on VRA to ensure the safety of the subcontractor’s employees. Rather, it was intended to ensure the building was constructed in accordance with the specifications and that the “progress and quality of the work” proceeded according to the specifications. The court also considered other contract provisions, such as one that stated that the “undertaking of periodic visits and observations by (VRA) or (its) associates shall not be construed as supervision of actual construction.”

The worker attempted to get around the contract by arguing that there was “an extra-contractual duty imposed on VRA, as an architect, to use reasonable care to protect against injury to third parties … who may reasonably be foreseen to be at risk by deviation from or inadequate supervision of design specifications.” While the Louisiana Supreme Court noted that there were some lower court decisions that purported to create such a conclusion, it declined to reach this conclusion.

Is an engineer monitoring highway work liable for a worker’s death on the jobsite?

HNTB Corp. was engaged by the state of Florida as the construction engineering inspector on a highway construction project to perform inspections on the installation of smart electronic signage poles along the Interstate 10 corridor. The Florida Department of Transportation engaged general contractor SICE, who in turn hired a maintenance of traffic subcontractor to place traffic cones and signage to warn drivers of the worksite.

After part of the construction was complete, SICE’s superintendent helped the subcontractor pick up the cones. The superintendent picked up the cones and handed them to an employee of the subcontractor, who sat on a truck’s tailgate and put the cones in the truck. Although the facts are not entirely clear from the decision, it appears that when the cone collection was complete, the driver of the truck and the SICE superintendent believed the worker was going to walk back to the site and was no longer on the back of the truck. The truck accelerated, and the worker fell off the rear of the vehicle, hitting his head and causing his death.

The decedent’s estate sued HNTB and others for negligence. HNTB moved for an early dismissal from the case, asserting that it was acting in connection with its duties for a state agency and, as such, was entitled to governmental immunity. The decedent’s family countered that the “wanton and willful” exception to sovereign immunity applied because HNTB knew of repeated instances of the obvious danger of construction workers riding unsecured in truck beds. The trial court denied HNTB’s motion, and HNTB appealed.

The appellate court reversed and remanded for entry of summary judgment in favor of HNTB. The court observed that “HNTB is immune from suit unless it committed the acts outside the course and scope of employment, or unless the actor was acting in bad faith or with a malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property.” The phrase “wanton and willful disregard of human rights (or) safety” was interpreted as “conduct much more reprehensible and unacceptable than mere intentional conduct” and conduct that is worse than gross negligence. The “willful failure” must be more than mere inattentive, inert, or passive omission. The court reasoned that while the allegations of acts or omissions by HNTB may be characterized as negligence, “they do not rise to the level of ‘willful and wanton,’ and are remote from the circumstances that led to (the decedent’s) tragic accident.”

Insurance considerations for design professionals – when carriers seek to avoid reimbursing engineers for settlement payments to injured workers.

The next decision, Liberty Insurance Corp. v. HNTB Corp., involved the collapse of a bridge deck, resulting in injured construction workers suing the engineer (HNTB) and its professional liability carrier. The accident occurred when a bridge deck being lowered onto abutments fell, injuring the workers. The cause of the uncontrolled fall was traced to the failure to discover that water was trapped inside the deck. The workers sued HNTB, in part, because HNTB was on-site when the accident happened.

HNTB’s commercial general liability insurer (Liberty) initially joined with its professional liability insurer to defend HNTB. However, Liberty concluded that two exclusions in the policy negated coverage and stopped participating in the defense. HNTB settled the workers’ claim for a payment of $2.5 million, then requested that the court determine that Liberty had a duty to indemnify it for the settlement amount. The court granted HNTB’s motion for a partial summary judgment, and the insurer appealed.

The U.S. Court of Appeals for the 8th Circuit reversed and remanded, finding factual questions precluded pretrial resolution. Liberty argued that the commercial general liability policy contained exclusions of coverage for “construction management” and “professional services.” The construction management exclusion applied to “inspection, supervision, quality control, architectural, or engineering activities done by or for” HNTB on a project on which it served as construction manager. The professional services exclusion applied to “the rendering of or failure to render any professional services … with respect to … providing engineering … services to others in (HNTB’s) capacity as an engineer.” Professional services were defined to include “supervisory or inspection activities performed as part of any related architectural or engineering activities.”

The court examined the workers’ lawsuit to determine whether HNTB’s alleged liability arose out of activities the policy excluded from coverage. The workers’ theory of liability alleged that HNTB negligently failed to execute its contractual obligations, which the court articulated as performing both “construction management services and independent quality assurance. Its specific responsibilities included ensuring compliance with various requirements and regulations, enforcing safety rules, identifying problems, and recommending sound engineering solutions.”

In addition, the court cited HNTB’s “project work plan” as including similar responsibilities, including recommending “sound engineering solutions” to “actual and potential problems associated with the construction project work.” In short, the workers’ theory was that HNTB’s on-site engineer failed to perform the contractual duties competently by missing the presence of water in the bridge deck.

HNTB countered that its responsibilities were that of a project manager, not a construction manager, and that its sole role was to provide independent quality assurance, regardless of what the “boilerplate” project work plan said. HNTB further argued that its contract for work on this project did not include construction management responsibilities. Finally, it asserted that it did not provide professional services in that it did not direct or supervise performance of the work.

As might be expected, the court concluded that a factual dispute existed as to HNTB’s role on the bridge project. This meant the issue of coverage could not be established by summary judgment.

Case takeaways

Site visits: The question of whether an A/E owes an extra-contractual duty to third-party contractors, subcontractors, and workers depends on many factors. As noted above, courts do look carefully at what contracts require of the A/Es, and A/Es can be held liable if they negligently fail to perform those duties. While the Louisiana Supreme Court did not address the issue of how to deal with extra-contractual duties, there are courts from other jurisdictions that have found A/Es liable to injured third parties for their actions/inactions, notwithstanding contracts.

Knowledge of unsafe practices: In the second decision, HNTB’s status on that project, acting for a state agency, was the deciding factor shielding it from liability. It was difficult for the plaintiff to argue that just because HNTB allegedly knew of repeated safety violations by the contractor and/or subcontractors, it participated in wanton or willful neglect. When reviewing contracts, design firms are often asked to agree to waive any sovereign immunity or other types of immunity that might be available to them under state law. A/Es are well served to strike that waiver language so they may rely on the protections afforded by such immunity statutes. Had HNTB been acting for a private owner, however, it is possible the court would have come to a different conclusion.

Forcing insurance carriers to indemnify: The third decision is a preview of what may occur when an A/E elects to “settle out” on claims brought by injured workers. Here, the engineering firm was unable to obtain an easy declaration from the court that the commercial general liability carrier had to pay part of the $2.5 million settlement payment (along with HNTB’s professional liability insurer). This case may ultimately be resolved outside of court as the cost of proceeding with the suit for both parties, after a settlement of the underlying action and then an appeal, is substantial. Ensure that your firm is cognizant of the exclusions that apply to on-site responsibilities – and, thus, site safety liability – in all insurance policies.

This article is published by Civil Engineering Online.