A construction laborer was injured when part of a floor collapsed on him when he was removing concrete “topping.”  The individual sued the engineer arguing negligence in failing to disclose the dangerous unstable condition and failing to specify that the floor should be supported with shoring during demolition.  Appellate court affirmed the denial of the engineer’s motion for summary judgment.  In doing so the court rejected the engineer’s argument that it had n duty for site safety because the contract documents expressly stated that the contractor was solely responsible. Two expert engineers provided reports stating that an engineer has a duty to disclose known unsafe conditions, even if the contract states the contractor has sole site safety responsibility, and failed its duty when it failed to adequately disclose the unsafe condition.  The court found the engineer here had a duty “to exercise such care, skill, and diligence as men in that profession ordinarily exercise under like circumstances.”  Dieter v. Gardner Builders Minneapolis, LLC, 2022 WL 748468 (2022).

Here the “expert reports, indicate that, under the prevailing standard of care applicable to engineers, LHB’s role in preparing plans and specifications for the [   ] project encompassed a duty to fully disclose the condition of the floor.  In other words, the expert reports are not being used to create a duty; they are instead being used to explain what LHB was required to do to fulfill it undisputed duty … in preparing plans and specifications….”

The engineer conceded at oral argument that if an engineer has actual knowledge of a dangerous condition he or she may have a duty to take action to prevent injury.  In this case, said the court, “there is sufficient evidence from which a jury could find that LHB had such knowledge.  In particular, there is evidence that LHB engineers         [    ]  were onsite on the day of the accident and were aware that workers were using heavy machinery to remove part of the drill-hall floor…. The evidence in the record would allow a jury to find that the LHB engineers knew or should have known that the workers were in danger and thus had a duty to take action to protect them.”

May 25, 2022

As we previously reported, the Virginia General Assembly recently passed a bill banning the use of “pay-if-paid” clauses on construction projects within the Commonwealth, making Virginia the latest state to officially ban “pay-if-paid” clauses.

SB 550, as the bill is known, changes the law governing construction contracts in Virginia in two important respects. First, it will prohibit contractors and subcontractors on both public and private construction projects from including provisions in their subcontracts that condition payment on the receipt of funds from the owner or higher-tier contractor. Second, it establishes fixed deadlines for the payment of invoices on private projects. Specifically, SB 550 provides that owners on private projects must pay their contractors within 60 days after receiving an invoice, and contractors and subcontractors on private projects must pay their subcontractors by the earlier of 60 days after receiving an invoice or 7 days after receiving payment from the owner or higher-tier contractor for the subcontractor’s work. Owners, contractors, and subcontractors will still be entitled to withhold payment for nonconforming work, but SB 550 requires written notice articulating the specific reasons for the withholding. There are interest penalties associated with the non-payment, and contract clauses contrary to this new law will be unenforceable. This bill goes into effect on January 1, 2023 and will apply to construction contracts executed on or after that date.


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 Report and may be reached at Kent@ConstructionRisk.com or by calling 703-623-1932.  This article is published in ConstructionRisk Report, Vol. 24, No. 4 (May 2022).

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