The Supreme Court of Mississippi affirmed a decision that we reported on last year in the case of McKean v. Yates Engineering, affirming that where a subcontractor’s employee was injured when scaffolding collapsed, the engineer working for the prime contractor was not responsible for those injuries where it had no supervisory duty to inspect the scaffolding before concrete was poured, and no other supervisory duties. The lower court of appeals had applied a seven-factor test to determine whether the engineer had such a duty outside the provisions of the contract. The court affirmed its previous holding that for an architect to have an affirmative duty to warn of dangerous conditions, the architect must “by contract or conduct” take on the responsibility to maintain the safety of the construction project. The court further stated that if the architect takes on a duty to supervise, “The supervision of safety is encompassed in the duty to supervise, and no separate agreement to supervise safety is necessary where the architect is supervising the details of every other aspect of the project.” The key for the design professional, therefore, is not to contractually agree to supervise the work of the contractors and then to be avoid falling within the pit of the seven factors. McKean v. Yates Engineering Corp., 200 So. 3d 431 (Mississippi 2016).
The seven factors identified by the court to determine whether supervisory powers go beyond the provisions of the contract include:
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 subcontract doors;
5) Assumption of responsibilities for safety practices;
6) Authority to issue change orders; and
7) The right to stop the work.
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. 19, No. 4 (April 2017).
Copyright 2017, ConstructionRisk, LLC