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J. Kent Holland, J.D.
ConstructionRisk, LLC

Summary judgment was granted and sustained on appeal for all defendants in this case where three employees of a contractor were injured when scaffolding failed under the weight of a concrete slab that was being poured. The laborers suit against contractor was dismissed based on the protections of the workers compensation statute. Their suit against the engineering firm and architectural firm involved in designing and observing the project were dismissed because they were not involved in actual supervision and control of the contractors work. Suit against the project owner was dismissed because after an owner surrenders the property to the contractor for construction, the contractor assumes a duty to warn or otherwise protect his employees, and that duty does not fall on the owner. Citing the AIA B141 agreement, the court found the engineer “was not obligated to inspect the scaffolding to ensure that it was in compliance” with the plans and specifications. The court notes that the engineer that designed the scaffolding is not subject to liability because it created a design that was impossible to build and, rather than seeking clarification regarding that design, the contractor used its own design to “splice” supporting posts without the knowledge of the engineer. Thus, even if the design was inadequate, it was not the cause of the collapse. It is important to note that the plaintiff’s expert witness (an engineer) submitted an affidavit stating that in his opinion the “defects in the scaffolding caused the collapse.” That part of his testimony inadvertently helped the engineer and architect defendants.   Another aspect of his affidavit opined that the architect had a duty to inspect and supervise the construction of the scaffolding. The court excluded that testimony because it found as an engineer this expert was not qualified to offer an opinion on what an architect was required to do.   McKean v. Yates Engineering Corp., 2015 WL 5118062 (Mississippi 2015).

This decision has so many lessons learned that this short article cannot begin to do justice at explaining all its gems of wisdom.   The balance of the article will just hit a few highlights. Get a copy of the decision if you want to learn more.

The court said there was no authority to support the conclusion that either the architect or engineer had an absolute duty to inspect the scaffolding and formwork to ensure the engineer contractor followed his design. In fact, unless expressly required by contract, there would be only limited circumstances in which an engineer has a duty to notify or warn workers or employees of the contractor or subcontractor of hazardous conditions on the construction site.   Since there was no written contract between the contractor and the engineer that designed the scaffolding, there certainly was no express contractual requirement imposed on the engineer.

The court did not stop there in its analysis of the engineer’s potential duty to the laborers, however. It considered the seven factors outside of contractual responsibility that may determine whether supervisory powers go beyond the provisions of the contract.

Those factors are:

(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 responsibilities for safety practices; (6) authority to issue change orders; and (7) the right to stop the work.

The court found no evidence that the engineer did anything to fall within any of those seven factors. According to the court, the engineer “unequivocally said that he did not visit the construction site to determine whether [the contractor] followed his design.” He had only one initial visit and then a visit after the formwork collapsed.

Owner has no Liability

The plaintiffs asserted that the owner breached its duty as owner of the property to provide them with a reasonably safe working environment. They also claimed that the owner was vicariously liable for the contractor’s behavior based on agency relationship. The court rejected both arguments. The state code provides that an owner of property is not liable for injury of an independent contractor’s employees resulting from dangers of which the contractor knew or reasonably should have known. In addition, the state common law protects business owners from injuries sustained by “independent contractors” on a work site.   Once the property owner has given the property to the contractor to begin construction the contractor assumes the duty to warn or otherwise protect its employees and agents on the property, and that duty is removed from the Owner.

The court found that as a matter of law, the owner had no duty to warn the plaintiffs about the condition of the scaffolding that the contractor designed and built.

Architect has no Liability

The plaintiffs asserted that the architect had a contractual duty to inspect the formwork and scaffolding before the subcontractor poured the concrete for the second-floor slab. They further assert that the architect’s conduct created a duty “to ensure the integrity of the concrete formwork.”   In rejecting these arguments the court quoted from the AIA B141 contract that applied to the services. The court said that the unambiguous language of the contract sates that the architect is not responsible for construction methods or safety precautions in connection with the work. As explained by the court, “the scaffolding was a means to build the project’s second-story floor”, and nothing in the contract made the architect responsible for ensuring that the engineer’s scaffolding design was adequate.

Moreover, the court concluded that the architect had no contractual duty to inspect the scaffolding before the concrete was poured. It quoted the contract that stated the architect “shall visit the site at intervals appropriate … to determine that the Work when completed will be in accordance with the Contract Documents.”   The court noted that the contract documents do not include any drawings or specifications related to the scaffolding. They merely stated, “Adequate bracing and forming is required.” None of this suggested a duty of inspection to ensure compliance.

Another important point made by the court is that the general authority to “reject” non-conforming work did not create a special duty, because the architect “had no authority to stop the work. Only [the owner] had the authority to stop work on the project. “

Finally, since there was no evidence that the architect undertook to supervise any aspect of the scaffolding, it had no duty to warn the plaintiffs that the scaffolding the contractor built was inadequate.

Comment: This decision should be a “go-to” case for teaching and explaining a number of important principles, including (1) the importance of using language consistent with the AIA owner-architect agreement, (2) use of expert witnesses, (3) the difference between site visits/observation and inspection, and (4) site safety responsibilities and liabilities, and the standard of care imposed on various parties.

 

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. 18, No. 3 (March 2016).

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