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Engineer that was hired by school district prepared plans for certain roof repairs, and also prepared contract documents and bidding documents for use of the school in bidding out the roofing project to contractors.   After award to the low bidder, an employee of the contractor went onto the roof to begin removing debris and immediately fell through a deteriorated area and suffered injury. The laborer sued the engineer, claiming it knew of the dangerous condition and should have warned him. Summary judgment was granted for the engineer, and affirmed on appeal, on the basis that the engineer had no contractual or common law duty to warn. Waltman, v. Engineering Plus, Inc., 264 So. 3d 758 (Miss. 2019)in preparation of doing the repairs.

According to the appellate court, the engineer’s contract indicates that the parties didn’t intend for the engineer to be responsible for the safety of construction contractor employees. Moreover, the construction contract specified that the contractor “shall satisfy itself of the existing size and conditions of the project area.” Other provisions of the contract reinforced the proposition that the contractor was the only party responsible for safety at the site.   For example, a provision stated that the contractor was,

“responsible for all loss or damage arising out of the nature of the work aforesaid, or   from   the   action   of   the elements, and unforeseen obstruction or difficulties which may be encountered in the prosecution of the same and for all risks of every description connected with the work for faithfully completing the whole work[.]”

Although the construction contract stated that the work “shall be done under the direct supervision of” the engineer, this did not result in the engineer legally assuming those duties. The court stated that to determine whether the engineer has a supervisory duty outside the provisions of its own contract, a seven-factor test is to be applied.

“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 notes that the contractor argued only that the engineer had knowledge of the dangerous condition. It didn’t argue any of the above factors. Mere knowledge of a dangerous condition “by itself does not satisfy the [ ] factors.” In this case, no evidence was offered to show that the engineer had responsibility for any supervision or control of the work, had assumed responsibility for safety practices, or had authority to issue change orders or stop the work.

Comment:

For managing the risk of liability arising out of jobsite safety, it is important for firms such as design professionals and construction managers have clear and unambiguous contract language delineating the scope of service and stating who is responsible for site safety. It is equally important to be conscious of how their actions and services will be judged with regard to the seven factors listed above. The protections of good contract language can be lost through actions during construction administration.

 

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 ConstructionRisk 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. 21, No. 7 (Aug 2019).

Copyright 2019, ConstructionRisk, LLC