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In a recent case, Herczeg v. Hampton Township Municipal Authority and Bankson Engineers, the Superior Court of Pennsylvania declined to impose liability on an engineer in circumstances where the complaint alleged that the engineer had actual knowledge of dangerous job site conditions resulting in death to a laborer. This is in stark contrast to the well known case from the neighboring state of New Jersey, Carvalho v. Toll Brothers and Developers, 675 A.2d 209 (N.J. 1996), that held where an engineer observes work and inferably has actual knowledge of a dangerous condition, the engineer has a duty to exercise reasonable care to the worker.

A construction worker (Steven Wagner) died while working in an unshored trench. The complaint alleged that the engineer (“Bankson”) was the project representative for the owner, and had actual knowledge that Wagner was working in a dangerously unsafe trench “in that the trench had no shoring or bracing in violation of Bankson’s own specifications, federal law and industry practices.” It is further claimed that the risk of serious injury or death was reasonably foreseeable and that Bankson’s representative took no steps to warn the workers or to correct the situation. Under those alleged conditions, the plaintiff asserted that the engineer breached a duty owed to the decedent and was liable for his resultant death.

In its answer to the complaint, the engineer asserted that it had no knowledge of an unsafe condition and no duty regarding the allegations. It also asserted that none of its services were involved in the cause of the accident. And it maintained that it had no authority to control the contractor’s work and never assumed by contract or conduct any responsibility for job site safety.

The trial court granted the engineer’s motion to dismiss the complaint for failure to state a cause of action. On appeal, the appellate court affirmed the dismissal, stating, “The courts in this Commonwealth have consistently refused to impose a duty on design professionals to protect workers from hazards on a construction site unless there was an undertaking, either by contract or course of conduct to supervise or control the construction and/or maintain safe conditions on the site.”

In this particular case, the court further explained the plaintiff’s theory of liability as follows: “Appellant argues the traditional principles of negligence law should impose a duty on an engineer to exercise reasonable care for the safety of the general contractor’s workers when the engineer has actual knowledge of dangerous working conditions that create foreseeable risk of serious injury to those workers. She submits this is true even where the contract places the responsibility for safety on the general contractor and the engineer’s plans and specifications did not create the dangerous conditions. We cannot agree.”

With regard to the applicability of Carvalho v. Toll Brothers case, the Pennsylvania court stated, “We are not persuaded that the rationales expressed in these cases 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.” This decision by the Pennsylvania court provides a well-reasoned discussion of the different legal theories that may apply, depending upon the jurisdiction where the project is located. Herczeg v. Hampton Township Municipal Authority and Bankson Engineers, 766 A.2d 866 (2001).

About the author: Article written by J. Kent Holland, Jr.,  a construction lawyer located in Tysons Corner, Virginia,  with a national practice (formerly with Wickwire Gavin, P.C. and now with Construction Risk Counsel, PLLC) representing design professionals, contractors and project owners.  He is founder and president of a consulting firm, ConstructionRisk, LLC, providing consulting services to owners, design professionals, contractors and attorneys on construction projects.  He is publisher of ConstructionRisk.com Report and may be reached at Kent@ConstructionRisk.com or by calling 703-623-1932.  This article is published in ConstructionRisk.com Report, Vol. 4, No. 5 (May 2002).

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