Inside this Issue
- A1 - Architect Not Responsible for Site Safety
- A2 - Time Limit for Filing Suit May be Shortened by Construction Contract
Article 1
Architect Not Responsible for Site Safety
See similar articles: means and methods | Site Safety
Where a subcontractor employee of the prime contractor was injured on a job site, it filed suit against the Architect, claiming negligence in preparation and approval of design plans and specifications, failure to adequately design, and failure to monitor and supervise the execution of the plans to ensure safety at the job site. Summary judgment of the Architect was granted, but reversed by an appellate court and then reinstated by the state supreme court, which held the Architect cannot be held liable for failing to perform duties it had no responsibility or authority to undertake. Bonilla v. Verges Rome Architects, 2023-00928 (La. 2024).
Architect contract as well as the contractor’s contract clearly placed site safety responsibility on the contractor and not the Architect. Periodic site visits by the Architect cannot be construed as supervision of the construction work. The mere fact that the architect was involved in the construction process and had contractual duties owed to the project Owner did not create a duty to protect everyone from every risk that could be encountered at the site. The documents made the contractor responsible for construction means and methods and so clearly placed responsibility for site safety on the contractor that summary judgment must be granted to the Architect.
The employee in question was performing demolition work while standing on the concrete ceiling slab of vault located on the second floor of a building. The supervisor of that employee advised him to use a hydraulic jackhammer and continue his work after having already taking down most of one sidewall and a section of the front wall. While doing so, the entire vault structure collapsed and the employee sustained injuries.
In analyzing the arguments on the summary judgment, the state supreme court explained that the duty owed a contractor’s employee by an architect or engineer is determined by the express provisions of the contract between the parties. The contracts in question appear to be based on the AIA contract document for construction and the AIA contract document for design services (although is not expressly stated by the court).
Some of the articles quoted from the contractor’s client read in part as follows:
“2.3 … The undertaking of periodic visits and observations by [Architect] or his
associates shall not be construed as supervision of actual
construction.
3 2.4 [Architect] will visit the site periodically to
familiarize himself with the progress and quality of the
work. On the basis of his observations, he will keep the
Owner informed of the progress of the work and shall
submit weekly reports with photographs. [Architect] shall
endeavor to protect the Owner against defects in the work.
2.5 [Architect] will not be responsible for nor control
the construction means, methods, safety precautions and
programs. [Architect] will not be responsible for the
Contractor to carry out the work in accordance with the
Contract Documents, or the Contractor's acts or omissions
or the acts or omissions of his Subcontractors or employees.
* * *
4.7 The Contractor shall direct the work using his
full attention and shall be entirely responsible for all
construction means and methods.
* * *
**5 10.1 The Contractor shall be responsible for
initiating, maintaining, and supervising all safety
precautions and programs. He shall take all reasonable
precautions for the safety and shall take all reasonable steps
to prevent damage, injury, or loss of the work itself and
all material and equipment incorporated; or property at the
site or adjacent thereto, and all employees or other persons
affected by the work.
* * *
10.3 The Contractor shall erect and maintain, as required by
existing conditions and progress of the work, all reasonable
safeguards for safety and protection....
* * *
10.8 The Contractor shall designate a responsible member
of its organization at the site whose duty shall be
the prevention of accidents. This person shall be the
Contractor's superintendent unless otherwise designated by
the Contractor in writing to the Owner and the Consultant.”
The Design Agreement provides in pertinent part:
“F(5) [Architect] will make site visits to the site as required
(with a minimum of one per week) to review the progress
and quality of the Work and to determine, in general, if
the Work, when fully completed, will be in accordance
with the Construction Documents and the Construction
Progress Schedule. On the basis of its on-site observations,
[Architect] will keep the Owner informed of the progress
and quality of the work performed, and report known
deviations from the Contract Documents, deviations from
the most recently approved construction schedule, and
shall endeavor to protect the Owner against defects and
deficiencies observed in the Work.
* * *
F(8) [Architect] shall not have control over, charge of,
or responsibility for the construction means, methods,
techniques, sequences, or procedures, or for safety
precautions and programs in connection with the Work,
nor shall the [Architect] be responsible for the Contractor's
failure to perform the Work in accordance with the
Construction Documents. [Architect] shall not have control
over or charge of, and shall not be responsible for, acts
or omissions of the Contractor or of any other persons or
entities performing portions of the Work.”
The injured employee argued that Section F(5) of the Design Agreement imposes a duty on VRA to supervise and report any deviations from design specifications to ensure work site safety. Alternatively, he argued there is an extra contractual duty imposed on the architect to use reasonable care to protect against injury to third parties (like the subcontractor’s employee) who may reasonably be foreseen to be at risk by deviation from or inadequate supervision of design specifications.
In opposition to those arguments the Architect in this case argued that under the General Conditions and the Design Agreement, no duty is owed to Mr. Bonilla as relates to the means, methods, or safety of the demolition of the vault. The architect also argued that “Section F(5) of the Design Agreement was not intended to make it responsible for the means and methods of construction and site safety; instead, [the architect] avers that Section F(5) ensures that, before final acceptance of the work, the owner will have the building it had contracted for.”
The court concluded: “We agree. The clear and unambiguous language, General Conditions and Design Agreement dictate that [the Architect] owes no duty to Mr. Bonilla."
Risk Management Comment: The court applied the clearly written language of these contracts to enforce the provisions that the contractor had sole responsibility for site safety. The architect here apparently took no action in the field that would countervail the clear intent of the contract. No argument was made that it had instructed the contractor on how to perform the work or had somehow involved itself in decisions concerning the contractor’s means and methods or site safety procedures.
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. 26, No. 4 (May 2024).
Copyright 2024, ConstructionRisk, LLC
Article 2
Time Limit for Filing Suit May be Shortened by Construction Contract
See similar articles: Statute of Limitations
Where plaintiff sued a contractor for construction defects, the contractor filed for summary judgment to dismiss the action because it was filed later than the time period specified in the contract. Although the action was filed within the time permitted under the state statute of limitations, the contract stated that no action could be brought more than two years after the cessation of the work. The court concluded that regardless of whether the claims are for breach of contract or negligence, the shortened contractual limitations period applies to all claims. The claims were thus untimely made. Markel American Insurance Company v. MR. Demolition, Inc., 2024 WL 630422 (New York, 2024).
The following is quoted from the court’s decision:
Under New York law, the statute of limitations for a
negligence action is three years from the date of the injury.
CPLR § 214. An action for breach of contract must be brought
within six years of the date of the breach. CPLR § 213(2).
New York law also permits parties to a contract to shorten
these periods. See Sidik v. Royal Sovereign Int'l Inc., 348 F.
Supp. 3d 206, 213-14 (E.D.N.Y. 2018) (“Under New York
State law, parties to a contract may agree to shorten the
applicable statutory limitations period.”); Corbett v. Firstline
Sec., Inc., 687 F. Supp. 2d 124, 132 (E.D.N.Y. 2009) (holding
that plaintiff's tort and contract-based claims were barred by
one-year contractual limitation).
Here, MT and Plaintiff's Insured agreed to contractually
shorten the above statutes of limitation such that any claim
against MT had to be brought within two years of MT's
completion of the work. Plaintiff does not dispute that it is
bound by the contract. Applying this two-year contractual
limitations period in the State Court Action, the New York
State Supreme Court, Kings County held that Plaintiff's
Insured's claims against MT were time barred. Dkt. 41-9, at
6-7. Plaintiff offers no compelling justification for why this
Court should rule differently. Indeed, regardless of whether
Plaintiff's claims against MT are for breach of contract or
tort, the shortened contractual limitations period applies to all
claims against MT “whether in tort, contract, or otherwise.”
This includes the claims brought by Plaintiff against MT in
this case.
In light of the two-year limitations period, Plaintiff's claims
against MT are untimely regardless of whether MT's work
was completed on January 9, 2019 or on October 28,
- Plaintiff filed the Amended Complaint against MT
on September 28, 2022, more than one year after the
contractually-shortened limitations expired irrespective of the
accrual date. Accordingly, the Court finds that Plaintiff's
breach of contract and negligence claims against MT are
untimely.
Risk Management Comment:
Including a specified time limit for filing suit is a good idea. Many states have a statute of repose that sets a number of years for filing suit regardless of when the cause of action might be reasonably discovered. This effectively shortens the statute of limitations for filing certain claims. But it is possible to contractually specify an even shorter period of time for filing suit - contractually shorten the time for filing suit.
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. 26, No. 4 (May 2024).
Copyright 2024, ConstructionRisk, LLC
Connect