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ConstructionRisk.com Report
http://www.ConstructionRisk.com
Vol. 6, No. 2, Feb 04
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Inside
This Issue:
Engineer
Had No Duty to Warn General Contractor’s Employee of Danger
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To read
this newsletter in HTML format go to:
http://www.constructionrisk.com/newsletter/articles/newsletter04-02.htm
.
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A NEW
SEMINAR by International Risk Management Institute (IRMI):
Proactively
Managing Risks and Claims in Design and Construction
Choose
from one of three different cities to attend:
Las
Vegas
–
March 23-24
Chicago
–
March 31 – April 1
Washington
D.C.
–
April 13-14
Attend this New, day and one half, IRMI Seminar to Learn How to
Protect the Bottom Line and Make Construction Projects More Successful!
In this workshop, two nationally
known experts will describe and explain today’s design and
construction risks, how they are allocated in standard AIA, COAA, EJCDC,
and DBIA contracts, and what actions owners, contractors, and design
professionals can take to manage them. Of course, the professional
liability insurance options available to the various parties will be
discussed, with particular emphasis on ways to work around any
deficiencies in the coverage they provide. Lastly, the speakers, will
also share valuable advice on what to do when construction claims do
arise.
If you are a risk manager, business manager or general counsel
for an architectural/engineering or construction management firm; a risk
manager or project manager for a company or public entity with one or
more substantial construction projects planned for the future; or a
construction company risk manager or general counsel, you cannot afford
to miss this focused and intensive seminar.
If you are an insurance agent, broker, attorney, consultant or
underwriter responsible for managing or insuring the risks of
contractors, owners, or design professionals, you are also invited to
participate in this important information sharing exchange.
For
more information and the full agenda go to http://irmi.com/seminars/Design/default.asp.
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ARTICLE #1
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Engineer
Had No Duty to Warn General Contractor’s
Employee
of Danger
An engineer was not liable for injuries sustained by an employee
of a construction contractor where the engineer’s contract did not
make the engineer responsible for site safety and where the engineer did
not take any action in the field to supervise or control the
contractor’s work or otherwise involve itself in the contractor’s
safety practices.
In the case of Hobson
v. Waggoner Engineering, Inc., 2003 WL 21789396 (
Miss.
App. 2003), suit was brought against an engineer by the estate of a
deceased worker employed by a subcontractor to the general construction
contractor. The worker died
by drowning in a lagoon that was being built for a wastewater treatment
plant, designed by the engineer. The
engineer’s role during construction was limited to monitoring the
progress of the construction work for general compliance with the plans
and specifications. Its
contract did not give the engineer authority to stop work or issue
change orders but required it to make recommendations for approval by
the project owner. In
contrast, the construction contract gave the contractor full
responsibility for site safety.
Allegations by the worker’s estate included that the engineer
defectively designed the lagoon by making it’s the liner sides too
slick and its incline too steep to be climbed out of by a worker.
The estate also argued that the engineer violated a duty to warn
the worker that the steep slides and slick surface posed a danger.
The court held the engineer had no duty to the construction
worker because the contract gave the engineer no site safety
responsibility and the engineer did not act outside its contractual
authority to take on any site safety responsibility.
On the issue of the alleged defective design, the court held the
engineer could not be found liable in the absence of evidence via expert
testimony (which the plaintiff failed to present) that the slope and
slickness of the liner was contrary to the standard of care.
Although the plaintiff’s expert testified that there was
insufficient traction for the worker to climb out of the lagoon, he did
not testify that any alternative design would have been available or
that the engineer did not comply with the standard of care.
Without such expert testimony, the issue could not even go to a
jury for consideration and a summary judgment was appropriately granted
in favor of the engineer by the trial court.
Risk
Management Note: This
decision reaches a reasonable conclusion concerning site safety
responsibility by honoring the intent of the contracting parties and
recognizing the appropriately restricted role of design professionals
during construction. Another
case that we reported on last year was the case of
Herczeg v. Hampton Township Municipal Authority and Bankson Engineers,
766 A.2d 866 (2001). In that
case the Pennsylvania Supreme Court held: “We are not persuaded that
the rationales expressed in these cases [such as Carvalho]
warrants the establishment of a new rule of law fastening liability
based strictly upon an assertion of actual knowledge of unsafe word-site
conditions.” “We reject any notion that a duty arises based solely
upon an engineer’s actual knowledge of dangerous conditions…. If
someone is under no legal duty to act, it matters not whether that
person is actually aware of a dangerous condition…. Conversely, if
someone by contract or course of conduct has undertaken the
responsibility for worker safety that person may still be liable even in
the absence of actual knowledge of the dangerous condition if they
should have known of the condition.”
The factors which would appear to be relevant in any case where
an attempt is made to expand a design professional's liability
beyond the specific provisions of its contract with the owner include
the following:
(1) actual supervision and control of the work;
(2) retention of the right to supervise and control;
(3) constant participation in ongoing activities at the
construction site;
(4) supervision and coordination of subcontractors;
(5) assumption of responsibility for safety practices;
(6) authority to issue change orders; and
(7) the right to stop the work.
These same factors may be used by courts in evaluating whether
the project owner retained sufficient control over the site to be held responsible
for site safety. Where an owner does not retain any control over
the manner in which the work was performed, and it has no actual
knowledge of the danger or condition that resulted in a laborer being
injured, it generally has no liability according to the cases reported
in this course.
General contractors should also be aware of these factors that
are used by the courts, because liability of a general contractor
for injuries to employees of subcontractors may be limited to those
situations where the general contractor has retained control over the
operative details of the subcontractor's work.
=====================================
PMI
College
of Scheduling – First Annual
Conference –
Montreal
These are exciting times for the Project Management
Institute's
College
of
Scheduling
, the only worldwide organization
dedicated to promoting the expectation and implementation of excellence
in scheduling. Membership continues to grow at an amazing rate,
totaling over 700 members from more than 35 countries, and committee
leadership positions are filling rapidly. The College's curriculum
is
taking shape, complemented by relationships across the public and
private sectors and academia.
With its infrastructure in place, the College will convene its first
Annual Conference in beautiful
Montreal
,
Quebec
,
April 25-28, 2004
.
Visit www.pmicos.org today to
register online.
For additional information about the Conference, please contact Gwen
Barger at unicorn1015@yahoo.com.
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ABOUT
THIS NEWSLETTER & A DISCLAIMER
This
newsletter Report is published and edited by J. Kent Holland, Jr.,
J.D., a construction lawyer and risk management consultant for
environmental and design professional liability. The Report is
independent of any insurance company, law firm, or other entity, and is
distributed with the understanding that ConstructionRisk.com, LLC, and
the editor and writers, are not hereby engaged in rendering legal
services or the practice of law. Further, the content and comments
in this newsletter are provided for educational purposes and for general
distribution only, and cannot apply to any single set of specific
circumstances. If you have a legal issue to which you believe this
newsletter relates, we urge you to consult your own legal counsel.
ConstructionRisk.com, LLC, and its writers and editors, expressly
disclaim any responsibility for damages arising from the use,
application, or reliance upon the information contained herein.
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Copyright
2004, ConstructionRisk.com, LLC
Publisher
& Editor: J. Kent Holland, Jr., Esq.
8596 Coral
Gables Lane
Vienna, VA
22182
703-623-1932
Kent@ConstructionRisk.com
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