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An employee of  a project owner sued the engineer and contractor for injuries he sustained when he fell through a partially open hatch door on the mezzanine level of a catwalk in his employer’s production area.  He claimed that the engineer (CRS Sirrine) was negligent is designing the hatch door and that the contractor (Flour Daniel) was negligent in constructing it.  He also argued that both had violated OSHA rules and regulations.  The employee (Mr. Duncan) worked as a production coating operator and was apparently working  at the time of his fall.

In answer to Duncan’s complaint, the engineer admitted that it had designed the hatch door.  Subsequently, however, during a deposition, a structural engineer for CRS Sirrine testified that, in fact, Sirrine was not involved in the design of the platform or hatch.  Based on this new information, Sirrine file a motion for summary judgment and the trial court granted judgment in its favor.   On appeal, the appellate court held that permitting Sirrine to amend its answer to the complaint to deny having designed the hatch was appropriate since pleadings should be amended in the interest of justice.

Flour Daniels also asked the trial court to grant a motion for summary judgment on the basis that it had only provided maintenance and fabrication services and never provided any engineering, design, or drafting services related to the hatch.  Deposition evidence stated that the owner had reviewed Flour’s installation performance “and would not have accepted the work if Flour Daniel’s construction failed to meet the design, assembly, quality, or safety specifications provided by [owner].”  The trial court granted this motion for summary judgment.

With regard to the alleged OSHA violations, Duncan asserted that OSHA and ANSI standards imposed a duty on Flour to ensure an open hatch was guarded.  Duncan also contended that an implied warranty of workmanship burdened Flour with a duty to fulfill its construction obligations in accordance with OSHA standards.  Whether OSHA’s regulations imposed a duty on Flour under a negligence theory depends, says the court, on whether Flour Daniel is subject to the OSHA regulations.

The court’s conclusion is that the “OSHA standards protect employees working for any business qualifying as an employer under the [Act]. . . . The key factor in determining whether a party constitutes an employer under OSHA regulations is whether the party has the right to control an employee’s work.”  Since Duncan didn’t produce any evidence showing Flour had the right to control his work, the court concluded that Flour was not constituted as his employer and that the OSHA regulations were, therefore, inapplicable.  As concerns the ANSI standards, they “only purport to be a guide and thus do not impose any extra duty on Flour Daniel.”

As a final basis for ruling in favor of Flour Daniel, the court stated that OSHA and ANSI standards do not impose liability on a contractor when the contractor merely assembled a project with design specifications provided by a third party.  The court cited a long accepted notion that “the contractor is not liable if he has merely carried out carefully the plans, specifications and directions given him, since in that case the responsibility is assumed by the employer, at least where the plans are not so obviously defective and dangerous that no reasonable man would follow them.”  Since the plaintiff’s own expert testified that one solution to render the area safe while the hatch door was open would be to station a person to guard the hatch, and this solution is completely unrelated to construction, would ameliorate the potential hazard, the design specifications were not so obviously defective as to require Flour Daniel to supplement the design on its own.  Duncan v. CRS Sirrine, 524 S.E.2d 115 (S.C. App. 1999).

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. 2, No. 8 (Aug 2000).

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