Employee of a medical center filed a personal injury suit against the building owner and also against the project architect that issued project performance specifications and reviewed contractor shop drawings of component parts proposed by the contractor for cleanout ports on a manifold cover. An angle iron dislodged from the manifold and caused the personal injury. The question on summary judgment was whether the records presented an issue of fact as to whether the architect was negligent in failing to detect problems with the contractor’s work during bi-weekly site inspections. Architect had notified the owner that the makeshift cleanout ports didn’t satisfy the specifications and must be replaced, but the owner and contractor failed to replace them. Architect argued that even if its inspection was negligent, that negligence couldn’t be the proximate cause of injury because the contractor’s unauthorized installation of angle irons constituted a superseding cause of the injury. Court held the matter must go to trail on the issue of whether there were superseding causes. Demetro v. Dormitory Authority of the State of New York, 170 A.D. 3d 437 (NY 2019).
When, during a site visit, the architect discovered that the contractor was installing ports or covers for the manifold that were not proper for the intended purpose, it reported this to its client, the project owner. It never approved the angle iron bracing, which apparently rattled apart from the cleanout port and fell onto the plaintiff’s head. In fact, when it discovered that the makeshift cleanout port covers were not in accordance with the specifications, and must be replaced, it notified both the building owner and contractor. That was done eight months before the accident, but no action was taken by the owner or its contractor to correct the problem before the accident.
In reviewing the proximate cause defense, the appellate court stated, “When a question of proximate cause involves an intervening act, ‘liability turns upon whether the intervening act is a normal or foreseeable consequence of the situation created by the defendant’s negligence.’” In this instance, the court concluded that “a jury could reasonably conclude that the effort to reinforce the cleanout port covers with angle irons was a normal and foreseeable consequence of the alleged inadequacy of the covers, which [Architect] either approved or failed to detect….” Thus, the court held there was a triable issue of fact as to whether the contractor’s use of the iron bracing, and the failure of the owner and contractor to replace the covers despite notice by the architect, constituted superseding causes of the plaintiff’s injuries.
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. 8 (Sep 2019).
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