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On a project where an employee of a construction contractor suffered any eye injury when concrete exploded out of a flexible tube he was trying to unclog, the construction manager was not liable for his injuries since the construction manger was under contract with the project owner and not the contractor, had no supervisory control or authority over the work being performed by the plaintiff, did not create the dangerous condition, and did not have actual or constructive knowledge of the condition.

In the case of Shawn Adair v. BBL Construction Services, 25 A.D.3d 971; 809 N.Y.S 2d 592 (2006), the appellate court sustained summary judgment in favor of the construction manager (CM), holding that there was no basis to find liability against the CM for injuries that the plaintiff, an employee of a separate construction contractor sustained while working on the project.

The plaintiff had been attempting to unclog a pipeline that was being used to pour concrete, when concrete exploded in his face.  The plaintiff testified that he himself loosened a clamp that resulted in the explosion of the concrete.  The court found that it didn’t make any difference to its decision what individual loosened the clamp, however, since the CM had nothing to do with the decision of how to operate the equipment and perform the work.

In support of its case against the CM, the plaintiff argued that the CM had authority to supervise, direct and control the concrete pour.  As evidence of that authority, the plaintiff asserted that the CM’s on-site field manager insisted that the concrete pour take place on the day of the accident despite a mix-up in the order from the original concrete supplier.  This was not persuasive to the court because “this directive, however, was entirely consistent with BBL’s administrative role in coordinating the scheduling aspects of the entire job and in no way demonstrates that its field manager had the authority to supervise or control the injury-producing work itself.”  The court noted that the plaintiff had acknowledged that no employee of the CM ever told him how to do his job.

In reviewing the facts of the case, the court stated that the witnesses who testified established that the CM did not provide labor or material to the contractor, and that the CM did not direct the employees of the contractor in how to perform their jobs.

In its short analysis of the law, the court explained that the CM had no contractual relationship with the contractor but instead had a contract directly with the project owner whereby it had responsibility “for ensuring that all contractors performed in accordance with the plans and specifications, for coordinating the safety programs of the contractors and for ensuring that the project proceeded as scheduled.”  Significantly, the court pointed out that the “contract specifically withheld from [CM] any authority to control either the contractors’ work methods or safety programs.”

Since the contract terms and the witness testimony are consistent in establishing that the CM had no supervisory control or authority over the work (and exercised no control or authority), there could be no statutory agency to make the CM liable under the New York Labor Law.  The court also found that the CM could have no liability at common law for negligence since it did not create the dangerous condition or have actual or constructive notice of that condition.    For these reasons, the court sustained the award of summary judgment to the CM.

Comment: This short decision concisely explains several points that are important in understanding the limits of site safety responsibility to be imposed on construction managers and other consultants or design professionals.    The court focused on the contractual relationships between the parties and noted that because the CM was under separate contract to the project owner and had no contract with the construction contractor, and because the CM did not go beyond the scope of its service to exercise authority and control over the contractor’s work, there was no basis under the state statute to impose liability on the CM.  The court also considered the question of whether the CM might be separately subject to liability at common law on a negligence theory.  But in this regard, the court considered the evidence that had been presented and concluded that the CM had no responsibility for condition of the pipe and had no actual or constructive knowledge of its condition which might have created a potential responsibility.

It should be noted that there are a number of cases in courts around the country that hold that if a CM has actual knowledge of dangerous conditions it must take action to avoid injury to workers even if their contract states they have no site safety responsibility.   There are also a number of cases that have found liability on the part of a CM when the CM has actively exercised authority and control over the work of the contractor, despite contract language disavowing responsibility.   Consistent with decisions such as Herczeg v. Hampton Township and Bankson Engineers, it is significant that the court here has explained that even though the CM’s contract had a reference to coordinating safety programs of the various contractors, the CM’s real responsibility under its contract with the project owner was to assist the owner in getting the job performed on schedule and per the plans and specifications.  This is the point that needs to be consistently made, and the fact that the contract in this case clearly stated that the CM had no site safety responsibility was a critical element in making that point.   This should be carefully considered when drafting CM contracts.

About the author: Kent Holland is a construction lawyer  in Tysons Corner, Virginia, and is a risk management consultant for environmental and design professional liability insurance and contracts.   He is also publisher of ConstructionRisk.com Report.  He may be reached at Kent@ConstructionRisk.com.  This article is published in ConstructionRisk.com Report, Vol. 8, No. 5.