Job Site Safety and Engineers’ Duty to Supervise

Posted on: September 20, 2017 by Professional Underwriters Agency

Engineer has no Affirmative Duty to Supervise Jobsite Safety absent Express Contract Language or Conduct Assuming Such Responsibility

  1. Kent Holland, J.D.
    ConstructionRisk, LLC

In the case of McKean v. Yates Engineering Corp., 200 So. 3d 431 (Mississippi 2016), the state’s supreme court affirmed a lower appellate court decision where a subcontractor’s employee was injured when scaffolding collapsed.  It held that the engineer working for the prime contractor was not responsible for those injuries where it had no supervisory duty to inspect the scaffolding before concrete was poured, and no other supervisory duties.

The lower court of appeals had applied a seven-factor test to determine whether the engineer had such a duty outside the provisions of the contract. The court affirmed its previous holding that for an architect to have an affirmative duty to warn of dangerous conditions, the architect must “by contract or conduct” take on the responsibility to maintain the safety of the construction project. The court further stated that if the architect takes on a duty to supervise, “The supervision of safety is encompassed in the duty to supervise, and no separate agreement to supervise safety is necessary where the architect is supervising the details of every other aspect of the project.”

The key for the design professional, therefore, is not to contractually agree to supervise the work of the contractors and then to be avoid falling within the pit of the seven factors.

The seven factors identified by the court to determine whether supervisory powers go beyond the provisions of the contract include:

  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 subcontract doors;
  5. Assumption of responsibilities for safety practices;
  6. Authority to issue change orders; and
  7. The right to stop the work.

At the trail court level, summary judgment was granted for the engineer in this case where three employees of a contractor were injured when scaffolding failed under the weight of a concrete slab that was being poured. The laborers’ suit against contractor was dismissed based on the protections of the workers’ compensation statute. Their suit against the engineering firm and architectural firm involved in designing and observing the project were dismissed because they were not involved in actual supervision and control of the contractors’ work.

Citing the AIA B141 agreement, the court found the engineer “was not obligated to inspect the scaffolding to ensure that it was in compliance” with the plans and specifications. The court noted that the engineer that designed the scaffolding is not subject to liability because it created a design that was impossible to build and, rather than seeking clarification regarding that design, the contractor used its own design to “splice” supporting posts without the knowledge of the engineer. Thus, even if the design was inadequate, it was not the cause of the collapse.

It is important to note that the plaintiff’s expert witness (an engineer) submitted an affidavit stating that in his opinion the “defects in the scaffolding caused the collapse.” That part of his testimony inadvertently helped the engineer and architect defendants.   Another aspect of his affidavit opined that the architect had a duty to inspect and supervise the construction of the scaffolding. The court excluded that testimony because it found as an engineer this expert was not qualified to offer an opinion on what an architect was required to do.

This decision by the intermediate appellate court in McKean v. Yates Engineering Corp., 2015 WL 5118062 (Mississippi 2015) found there was no authority to support the conclusion that either the architect or engineer had an absolute duty to inspect the scaffolding and formwork to ensure the engineer contractor followed his design.

In fact, the court stated that unless expressly required by contract, there would be only limited circumstances in which an engineer has a duty to notify or warn workers or employees of the contractor or subcontractor of hazardous conditions on the construction site.   Since there was no written contract between the contractor and the engineer that designed the scaffolding, there certainly was no express contractual requirement imposed on the engineer.

The court did not stop there in its analysis of the engineer’s potential duty to the laborers, however. It considered the seven factors set forth at the beginning of this article that may determine whether supervisory powers of a design professional go beyond the provisions of the contract, and thereby could render it liable for site safety.

The court found no evidence that the engineer did anything to fall within any of those seven factors. According to the court, the engineer “unequivocally said that he did not visit the construction site to determine whether [the contractor] followed his design.” He had only one initial visit and then a visit after the formwork collapsed.

Architect Also Had no Liability

The plaintiffs asserted that the architect had a contractual duty to inspect the formwork and scaffolding before the subcontractor poured the concrete for the second-floor slab. They further assert that the architect’s conduct created a duty “to ensure the integrity of the concrete formwork.”

In rejecting these arguments the court quoted from the AIA B141 contract that applied to the services. The court said that the unambiguous language of the contract states that the architect is not responsible for construction methods or safety precautions in connection with the work.

As explained by the court, “the scaffolding was a means to build the project’s second-story floor”, and nothing in the contract made the architect responsible for ensuring that the engineer’s scaffolding design was adequate.

Moreover, the court concluded that the architect had no contractual duty to inspect the scaffolding before the concrete was poured. It quoted the contract that stated the architect “shall visit the site at intervals appropriate … to determine that the Work when completed (sic) will be in accordance with the Contract Documents.”

The court noted that the contract documents do not include any drawings or specifications related to the scaffolding. They merely stated, “Adequate bracing and forming is required.” None of this suggested a duty of inspection to ensure compliance.

Another important point made by the court is that the general authority to “reject” non-conforming work did not create a special duty because the architect “had no authority to stop the work. Only [the owner] had the authority to stop work on the project. “

Finally, since there was no evidence that the architect undertook to supervise any aspect of the scaffolding, it had no duty to warn the plaintiffs that the scaffolding the contractor built was inadequate.

Comment: This decision should be a “go-to” case for teaching and explaining a number of important principles, including (1) the importance of using language consistent with the AIA owner-architect agreement, (2) use of expert witnesses, (3) the difference between site visits/observation and inspection, and (4) site safety responsibilities and liabilities, and the standard of care imposed on various parties.

Posted in: Professional Liability