Did the Design Professional Have Control Over the Project Site?

There are two ways the courts can establish that a design professional had control over the site. The first is simply based upon language contained in the contract. Does the project contract contain language that states the design professional is responsible for construction means and methods, or safety precautions used by the contractor? Does the design professional have authority to shut the job down? If either of these questions can be answered "yes," then the courts could assert that the design professional assumed control of the site through the project contract.

The second way the courts could establish that the design professional was a controlling entity is through the actions of the design professional at the project site. Is the design professional providing directions as to construction means and methods? Is the design professional providing suggestions on how to correct safety deficiencies? If the answer to either of these questions is "yes," then courts could assert that the design professional assumed control of the site through his or her actions.

Did the design professional have knowledge of the unsafe condition?

A design professional performing periodic site visits or working on a large site will need to show when and where he or she was on the project site. The unsafe condition in question may not have been visible at the time of the site visit or in the vicinity of the work area of the design professional. Detailed field notes kept in the bound log book as well as photodocumentation could help establish that the design professional could not have reasonably known about the unsafe condition.

Did the design professional have a reasonable opportunity to prevent the injury?

There may not have been sufficient time to notify the appropriate parties before the safety violations led to an injury. Again, detailed documentation may help establish that the design professional did not have sufficient opportunity to prevent the injury.

Was the risk of injury foreseeable?

Based upon what the design professional observed at the site, could it be expected that the injury would occur? Once again, field notes documenting site conditions as well as photodocumentation could help in showing whether or not the injury was foreseeable.

What The Courts Say

Recent court cases involving site workers filing suit against design professionals have had differing outcomes. The Supreme Court of New Jersey rendered a decision in the Carvahlo vs. Toll Brothers case where an engineer was held liable for negligence in the death of a contractor’s employee in a trench collapse. The contract stated that the engineer was "not to have control over or charge of construction means…or safety precautions used by" the contractor and that the contractor would be "solely responsible for all construction means, methods, techniques, sequences and procedures utilized in connection with the work" and "responsible…for acts or omissions of its employees, subcontractors and their agents and employees." Based upon the contract language, it would appear that the engineer bore no responsibility for job site safety. However, the court pointed out that the engineer was to "ensure that the work is performed in accordance with the requirements" of the contract documents and had the right to stop work of the contractor.

In 1997, the United States Court of Appeals ruled on a Utah case against a design professional where a worker was killed in an unshored trench. The worker’s family had filed suit against the design professional claiming that the design professional assumed a duty of responsibility when it agreed to monitor site operations and because it had been consulted about excavating the trench, and had knowledge about the safety problem but had failed to act upon it.

In ruling in favor of the design professional, the court asserted the following:

• The contract specifically and explicitly stated that the design professional was not responsible for maintaining worker safety at the site.
• There was no evidence that the design professional assumed control over worker safety at the job site. Though consulted about excavating the trench, the design professional played no role in the actual excavating of the trench.

The court stated, "We do not believe Utah would impose a duty on an engineer on the basis of knowledge and inaction alone, when the engineer contractually declines to accept responsibility for worker safety and does not in fact exercise control of worker safety at the job site." Also, the court noted that no one else at the site seemed to be aware of any danger in the trench.

Five Steps To Improve The Ability To Defend A Claim

With court decisions on the either end of the spectrum, it is hard to predict what will happen when a suit is filed. There are steps a design professional can take to improve the ability to defend a worker injury claim.

1. Make sure project personnel know what the contract says with regard to safety responsibilities and control of the job site.
2. Do not assume additional safety responsibilities beyond those required by the contract through employee actions at the job site.
3. Maintain detailed documentation of where and when personnel are on the job site.
4. If an unsafe condition is noticed, report it to the construction superintendent and the client. If the unsafe condition is not an imminent danger, the notification can be verbal, but be sure to document the notification in the project field book. Critical safety issues should be expressed in writing. In either case do not make suggestions on how to correct the safety violation, unless the contract states otherwise.
5. If the danger is immediate, then quick action is required and the affected workers should be told to remove themselves from the danger zone. The decision of whether or not the danger is imminent is admittedly a judgement call. While this could be construed as exerting control over the job site, a design professional is more likely to have problems if he or she does nothing about an immediately dangerous condition.