You Just Stood There? The Design Professional's Responsibility for Job Site Injuries

September 2001

What should the design professional do after witnessing unsafe job site practices by the contractor? Ken Slavens explains how different jurisdictions answer that question and what can be done to both prevent injury and protect liability.

by Kenneth A. Slavens
Brown & James, P.C.

One of the questions concerning job site injuries most frequently asked by design professionals is what to do when there are unsafe job site practices by the contractor. Not only is this question frequently asked, but also it is difficult to provide a simple answer. The two cases discussed in this article show why.

The Problem

Assume that your firm's contract with the owner, as most contracts do, require you or your representatives to make periodic visits to the site in an effort to guard the owner against defects in the work by the contractor. In the performance of your firm's contract, your firm's field engineer goes out to the site, and, while walking the job, the field engineer notices one of the general contractor's workers is working in a trench which has no shoring. Your firm created the contract documents and those documents require the general contractor to exercise certain safety precautions when trenching. The worker in the trench is at risk of injury or death should the trench collapse.

Does your firm's representative speak up regarding the dangerous condition? If he does not speak up, and the trench does collapse resulting in injury to the worker or worse, death, can your firm be held liable? If you do speak up, does this constitute interference with the contractor's means and methods, exposing your firm to a whole different group of claims? Your firm did not contract to supervise the work, so would you be taking on a responsibility your firm is not obligated to perform?

Putting aside values for the time being, the legal obligation your firm faces to act or not to act will depend to a great extent on where the project is located. There are different views on the legal obligations that vary by state. One view is that, as a professional with special knowledge, there is an obligation to act to protect the worker, and, failing to do so, you are liable. Another view is that there is no obligation to act regardless of the knowledge possessed.

The Kansas Supreme Court in Balagna v Shawnee County, Kansas et al., 668 P2d 157 (Kan 1983), concluded that the design professional is obligated to take some affirmative steps to protect the worker under facts very similar to the hypothetical set out above. The Superior Court of Pennsylvania in Herczeg v Hampton Township Municipal Authority, 766 A2d 866 (Pa 2001), on virtually the same factual scenario, concluded that the design professional is not obligated to take some affirmative steps to protect the worker.

Balagna v Shawnee County, Kansas et al.

In Balagna, the contract documents prepared by the engineering firm for the sewer construction project contained requirements specifically addressing safety precautions to be followed in trench operations. In fact, the AGC Manual of Accident Prevention, which requires shoring in trenching operations, was made a part of the construction contract. In addition, the plans and specifications referenced Occupational Safety and Health Act (OSHA) standards that specifically required shoring to be used.

The engineering firm and the owner agreed that the engineering firm would "provide an inspector or inspectors, whenever work is in progress, to review construction for compliance with the plans and specifications."

The Balagna court found evidence that showed that the engineering firm's inspector was on the job site on the morning of the accident—a trench collapse that killed a worker. When on site, the inspector acknowledged that he saw the trench at issue and knew that the trench should have had shoring. In fact, the inspector saw the worker walk into the trench. When the inspector saw the man in the trench, the inspector also saw shoring lying near the trench.

When the inspector testified in the wrongful death lawsuit, he said that he recognized that the worker being in the trench without shoring presented a dangerous condition, although at the time he was on site he did not give any thought to whether it was dangerous.

The worker's supervisor was standing right next to the inspector when the inspector observed the worker in the trench. The inspector testified that he did not believe that his role on the job site was to tell the worker, or the worker's employer, what to do. The inspector was asked why he did not point out the requirements related to shoring that were in the specifications, or as the court put it, why the inspector "chose not to enforce the specifications regarding shoring in trenching operations." The inspector's response was that he does not "tell [the contractor] how to do his work."

The inspector's specific instruction from his employer, the engineering firm, was that as an inspector, he was to only inspect the end product of the work. The inspector's deposition testimony parallels what you would hear from many employees of design firms providing construction administration. The specifics of the testimony merits setting it out verbatim:

Q: And you observed the contractor not following [the OSHA regulations regarding trenching] the day of [the worker]'s death, June 28, 1978, didn't you?

A: Yes, sir.

Q: And you took no steps to make sure he was told that they were not in compliance with that, did you, sir?

A: Yes, sir.

Q: You just stood there and let them be in a noncompliance state regarding safety regarding trenching compliance, is that correct?

A: That's correct, sir.

Q: Why?

A: Because I am following orders that I was given that we were not to be concerned with how the contractor did his work.

Considering all of the evidence presented, the Kansas Supreme Court concluded that the engineering firm's employee, and as a result, the engineering firm, had a legal obligation to prevent the injury to the worker who was killed. The court found that as a professional, the design professional cannot stand idly by with actual knowledge of unsafe practices on the job site and take no steps to advise or warn the owner or contractor. The court acknowledged that the great weight of legal authority supports a ruling that the design professional's basic duty is to see that his employer gets a finished product which is structurally sound and which conforms to the specifications and standards. However the design professional may, the court concluded, intentionally or by implication, by certain actions bring the responsibility for safety on himself or herself. One of the elements that may bring that responsibility home to the design professional is "actual knowledge of the dangerous condition."

The court stated its conclusion rather simply: "[I]f the architect-engineers had actual knowledge of unsafe practices, they should have taken some action in that case."

Herczeg v Hampton Township Municipal Authority

Herczeg was also a wrongful death lawsuit brought by the family of a worker killed on a job site. The death resulted, like Balagna, from a trench collapse. The family sued, among others, the engineering firm involved on the project.

The engineering firm had been retained to develop the plans and specifications for a municipal water line extension project. The factual allegations against the design firm in Herczeg were virtually identical to those alleged against the design firm in Balagna. The claim was that the engineering firm's representative on the job site had actual knowledge that the worker who died had been working in a "dangerously unsafe trench" and that the trench contained no shoring or bracing in violation of the engineering firm's own plans and specifications, federal law, and industry practices.

The design firm's response to the allegations was that it had no authority to control the contractor's work and never assumed by contract or conduct any responsibility for job site safety. The family of the worker responded that in this case, the engineering firm's representative on the job site had actual knowledge of dangerous working conditions. The worker's family argued that this knowledge should create a legal duty for the engineer to exercise reasonable care for the safety of the contractor's workers.

The court did not agree. The court refused to impose a legal duty on the engineering firm "premised solely on the engineer's presence at the time of the accident and his actual knowledge of a dangerous condition created by the contractor's failure to follow proper safety practices."

The Pennsylvania court held:

[W]e reject any notion that a duty arises based solely upon an engineer's actual knowledge of dangerous conditions. Stated another way, such knowledge, in and of itself, does not create a tort duty. The decisions of the appellate courts of this Commonwealth concerning a design professional's duty are not dependent upon the presence or absence of actual knowledge of unsafe working conditions. We believe such a notion adds nothing new to the duty analysis. If someone is under no legal duty to act, it matters not whether that person is actually aware of a dangerous condition.... Conversely, if someone by contract or course of conduct has undertaken the responsibility for worker safety, that person may still be liable even in the absence of actual knowledge of the dangerous condition if they should have known of the condition.... Even assuming ... that [the engineering firm] had actual knowledge of the unsafe nature of the trench, it does not follow that we must hold [the engineering firm] responsible for the safety of the construction workers where those responsibilities were expressly undertaken by the contractor.

Conclusions

Where does this leave you?

The first step in any analysis is to determine the law of the state where the project is located. If you do not know, or if you have any doubts, contact your professional liability insurer, your broker, or a lawyer who practices in the state where the project is located, and who regularly represents design professionals.

We will look at the easy answer first. Pay very careful attention to your contractual responsibilities. The obligations and responsibilities for the construction workers' safety should be expressly addressed in clear and unambiguous terms in the contract documents created for any project in which you are involved. If you are in a jurisdiction that agrees with the holding of Herczeg, you will be insulated from liability.

What if you are in a jurisdiction that agrees with the Balagna holding, or even the more difficult question, what if you are in a jurisdiction where there is no clear position taken? The first suggestion is the same, oddly enough. Pay very careful attention to your contractual responsibilities. The obligations and responsibilities for the construction workers' safety should be expressly addressed in clear and unambiguous terms in the contract documents created for any project in which you are involved. Regardless of the common law, a strong and favorable set of documents can only help your position, particularly in the jurisdiction where there is an open issue regarding liability.

The next decision is not without risk. The Balagna-type holding is fraught with risk for design professionals, as are the jurisdictions without a clear mandate. However, the suggestion from this author is the same. Look back on the testimony of the engineering inspector in Balagna as if you were the judge or the jury, or even better as a middle class, Middle American who is not familiar with the intricacies of the construction process. Now ask yourself what would jump out at you—not as a design professional or construction professional.

To me this is not even a close question.

Q:You just stood there and let them be in a noncompliance state regarding safety regarding trenching compliance, is that correct?

A: That's correct, sir.

[Emphasis added.]

This is said without any criticism whatsoever of the witness. This gentleman was clearly doing what he believed, and what millions of others believe, were his job and his responsibility.

An older lawyer once told me when dealing with a case like the cases discussed here to ask yourself: If you saw someone about to step off of the curb and in front of a bus, would you grab that person and pull him or her back to safety? If the answer is "Yes"—and it probably always is—that should tell you what to do.

If you find yourself in the same situation as the Balagna inspector, there is no risk-free answer. However, consider the alternative. Tell the worker's supervisor that the worker is being put in danger by an unsafe condition. Tell the supervisor that you do not want to see any one injured by the unsafe condition, and even though the contractor is the expert on construction practices, some affirmative actions should be taken. Then, at your first opportunity, write a letter to the contractor and owner documenting the events, including what you saw and what you did, and tell the owner and contractor that you did it for the worker's safety. Be sure to tell the contractor and owner that you are not assuming responsibility in general for the work site safety, nor for the contractor's means and methods, but someone needed to act to protect the worker.

Consider the difference this may make. Assume the same question under oath:

Q:You just stood there and let them be in a noncompliance state regarding safety regarding trenching compliance, is that correct?

A: That's incorrect, sir. I told the job site superintendent who immediately had the worker get out of the ditch before it collapsed. And by the way, here is my letter documenting exactly what I just told you.

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