A construction manager (CM) is not liable for injuries suffered by a contractor’s employee where the CM’s contract with the project owner did not establish CM contractual responsibility for jobsite safety and where (1) the contractor’s contract with the Owner stated the contractor was the controlling employer responsible for its own safety programs and precautions for its employees and that the CM responsibility did not extend to direct control over or charge of acts or omissions of the subcontractor and its employees, and (2) the CM did not undertake any extra contractual responsibility in the field that would have created any legal duty or responsibility for the safety of all employees. These types of cases are rather typical where an employee can only recover workers compensation benefits and cannot sue its own employer – thus setting the stage for an attempt to obtain greater damages by asserting that someone other than the employer is at fault – such as the CM or possibly a project owner.
In Hunt Construction Group, Inc. v. Garrett (964 N.E. 2d 222, Indiana 2012), an employee of a concrete contractor (Baker Concrete Construction, Inc.) was injured in a workplace during construction of a stadium. While removing forming material from concrete, one of her co-workers dropped a piece of wood that struck her on her head and hand. Although employed by Baker, she sought to recover from the CM (Hunt). She alleged that the CM had a legal duty of care for jobsite-employee safety. The CM’s only contract was with the project owner. It had no contractual relationship with Baker Concrete or any other contractors on the project.
On cross motions for partial summary judgment, the trial judge ruled that the CM could be held vicariously liable for the actions of Baker Concrete that led to the claimant’s injuries. On appeal, the appellate court reversed the trial court’s judgment on vicarious liability, holding that the CM did not become liable for the contractor’s safety responsibilities merely because CM safety representatives inspected the site daily for violations of the project safety program and conducted safety committee meetings. The court found that where the contract did not obligate the CM to provide jobsite safety, the CM would not be deemed to have legally assumed a legal duty of care for safety unless it undertook specific supervisory responsibilities beyond those set forth in the original construction documents.
In deciding whether the CM owes a duty, the court explained that it focuses on determining “whether (1) such a duty was imposed upon the CM by a contract to which it was a party and (2) the CM assumed such a duty, either gratuitously or voluntarily.” In this case, the court found that no legal duty of care for jobsite-employee safety was imposed upon the CM by any contract to which it was a party. “First, the CM contract itself did not specify that the CM had any responsibility for safety whatsoever. Second, counterpart construction contracts signed by the contractors and subcontractors indicated that they had responsibility for project safety and the safety of their employees. Third, those contracts expressly disclaimed any direct or indirect responsibility on the part of the construction manager for project safety.”
Although there were safety requirements in the CM contract, the court noted “But none of the safety provisions in the CM contract here impose upon Hunt any specific legal duty or responsibility for the safety of all employees at the construction site.” In fact, the contract supports the opposite conclusion according to the court. “Hunt’s contract expressly states that its CM services are to be ‘rendered solely for the benefit of [the client] and not for the benefit of the Contractors, the Architect, or other parties performing Work or services with respect to the Project.’ Moreover, the contract provided that Hunt was not ‘assuming the safety obligations and responsibilities of individual contractors,’ and that Hunt was not to have ‘control over or charge of or be responsible for … safety precautions and programs in connection with the Work of each of the Contractors, since these are the Contractor’s responsibilities.’” The court concluded: “In short, Hunt did not undertake in its contract a duty to act as the insurer of safety for everyone on the project. Rather, Hunt’s responsibilities were owed only to [the Client], not to workers….”
The court also pointed out that with regard to the CM’s responsibility to review and monitor the contractor’s safety programs, the contract reiterates that Baker Concrete was “the controlling employer responsible for [its own] safety programs and precautions”, and Hunt’s reviewing and monitoring of these programs did not “extend to direct control over or charge of the acts or omissions of the Contractors, Subcontractors….”
It is important to note that the court was quite critical of what it called the plaintiff’s “all-or-nothing” proposition that by agreeing to certain safety items in its contract with the Owner the CM had become responsible for all jobsite safety – including that which pertained to employees of contractors. In rejecting that argument, it suggested that if this argument were accepted and CM’s were made liable in situations like this one, this would be bad for jobsite safety. As explained by the court, “[S]afety at construction sites, especially at large public-works projects like this one, should not be sacrificed for fear of exposure to liability. The contract at issue here reflects a way of promoting safety without exposing construction managers to suits like this one. We agree with Judge Friedlander that the position advanced by [claimant] would ‘make it virtually impossible for a contractor taking on the role of construction manager to limit its liability so as not to become an insurer of safety for workers of other contractors.’”
Having determined that the CM owed no contractual duty for jobsite safety, the court next focused on whether the CM undertook such responsibility by its actions in the field. As stated above, the court found that the CM did nothing in the way of safety actions that went beyond the requirements of its contract. Consequently, the CM had no liability based on assumed site safety responsibilities.
Comment: This case once again demonstrates the importance of having contract language that clearly delineates what job site safety requirements apply to the contractor and what apply to the construction manager. As shown by the example of the plaintiffs arguments in this case, even where there is good contract language, a creative argument may be made that the construction manager somehow exercised jobsite safety responsibilities that went beyond what was contractually called for, and that in doing so the CM assumed responsibilities (and consequent liabilities) related to the actions taken by CM staff in the field related to site safety. In this case, even though the CM did indeed participate in site safety meetings and do site safety reports and other safety related activities, the court found that all of these were within the scope of the contractually agreed upon services performed strictly for the benefit of the owner-client and not for the benefit of employees of any of the contractors. This seems to be the key in many of these decisions – that the CM demonstrates that by its contract and by its actions in the field it was only serving the interests of its client and not anyone else.
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. 14, No. 9 (Oct 2012).
Copyright 2012, ConstructionRisk.com, LLC
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