In today’s world, the issue of site safety is complex and subject to a web of federal, state and local laws, regulations, codes, and legal precedents, any of which may determine how related lawsuits are resolved. Although site safety generally is the responsibility of construction contractors and subcontractors, when injuries occur, design firms may also be the targets of related litigation and claims. This Information Alert is the first of five-part series to help design firms assess and manage site-related safety issues.

From a design firm’s perspective, site safety is complicated and a function of various federal, state and local laws, regulations, codes, and legal precedents; any one of which could play an important part in how a lawsuit is resolved.

The Ames & Gough site safety series focuses on design/bid/build infrastructure projects that have a significant interface with the ground, such as highways, railroads, pipelines, shafts, dams and tunnels. When the ground is disturbed it can react in ways that are inherently unpredictable, which often can result in “accidents.” Among the most common occurrences are trench collapses. In general, however, many of the comments and observations provided in this series will also be applicable to vertical building projects and projects using a design/build format.

It is also important to note that design firms are involved throughout the process of design and construction either by being employed or retained by the Project Owner or Project Contractor in a variety of different roles and responsibilities; any one of which could result in an interface with site safety. As a best practice, all project participants should focus on working together to address site safety in a manner that makes each party’s role and responsibility crystal clear in each of the agreements and contracts that exist among the Project Owner, the Project Contractor, and the various Design Firms.

Confusion over who is responsible for site safety can lead to unaddressed hazards or other dangerous situations. This series will include suggestions for ways to avoid confusing contractual references or wording regarding site safety. The remainder of this section defines each project participant and provides related background information on site safety.

Definitions

Experience shows that certain words used in various agreements and contracts can be confusing or even contradictory; significant effort is often required to make certain that doesn’t happen on your projects.

For instance, it is not unusual for the “Engineer” to be assigned certain “responsibilities” in the Project Owner’s Contract with the Project Contractor that are at odds with responsibilities described in the Project Owner’s Agreement with the Design Firm. In general, this involves a two-part process consisting of the careful use of certain words followed by a thorough comparison of those words in various contractual clauses and stipulations. To begin this process, here are several definitions for words used in this series.

 Project Owner is the entity that identifies the need for a project and then proceeds to negotiate a series of Agreements and Contracts with Design Firms and Project Contractors, respectively, in order to produce that project.

 Design Firm as used herein is retained by the Project Owner primarily to assist with design of the finished facility.

 Construction Management Firm is retained by the Project Owner as an “agent” of the Project Owner to provide only field services during construction; accordingly, the Construction Management Firm would not have any design or construction responsibilities.

 Design Professional is registered in the state where the project is located and can be employed by or retained by the Project Owner, by a Design Firm or Construction Management Firm, or by a Project Contractor. Design Professionals also may or may not have some degree of responsibility for site safety based on contractual stipulations, type of structure being designed, and/or actions taken by a Design Professional during the process of construction.

 Agreement/Contract. It is important to make a distinction between contractual obligations for Design Firms versus Project Contractors. Contracts with the Project Owner that are signed by a Design Firm are referred to (in this series) as “Agreements”; those signed by a Project Contractor will be referred to as “Contracts.” In general, design firms should not be referred to as “Contractors,” especially with respect to issues relating to site safety.

 Project Contractor. The Project Contractor is the entity hired by the Project Owner to construct the finished facility and provide all of the temporary structures needed for that construction. In general, and by contract stipulation, the Project Contractor is made solely responsible for all of the means, methods, techniques, sequences and procedures involved in the construction process and for all of the safety precautions associated with that process. (In this series, all subcontractors hired by the Project Contractor are also assumed to share responsibility for site safety, but the contractual stipulations required to make that happen will not be discussed.)

 OSHA. The Federal Occupational Safety and Health Administration (OSHA) is part of the Federal Department of Labor and was established by Congress “to assure so far as is possible that every working man and woman has a safe and healthful working condition.” To a large degree, however, Federal OSHA is also responsible for coordinating with various state agencies for promulgating specific rules and regulations, for site inspections, and for enforcement actions.

 Engineer, by definition, may be subject to considerable confusion as used in conjunction with site safety. For instance, the word, Engineer, can be used to refer to a Design Professional but it can also be used to refer to the City Engineer or to the State Highway Engineer; i.e., individuals with significant contractual responsibility but who are not involved with design services. Contractual confusion with respect to the use of the word, Engineer, can have serious negative consequences for lawsuits involving site safety. This confusion can become even more consequential if the Project Owner participates in or directs design services or assigns its own employees to observe and monitor construction activities in the field.

 Finished Facility. The finished facility consists of all of the structures shown in the contract document that are required for the long-term use of the Project Owner.

 Temporary Structures. The temporary structures consist of all of the structures required by the Project Contractor in order to build the finished facility.

Background Information

Every construction project involves the active participation of Project Owners, Design Firms and Project Contractors. Initially, a Project Owner identifies the need for a project and almost always retains the services of a Design Firm to help prepare the specifications and drawings relating to that specific finished facility. Clearly, the Project Owner’s primary focus is on the adequacy and performance characteristics of the finished facility; however, that goal cannot be realized without the services of a Project Contractor. Notably, during construction all the issues relating to site safety come to fruition.

As mentioned, site safety involves all individuals working at the site, all those called upon to “visit” the site during construction, as well as all potential negative impacts to nearby, existing structures and utilities or rights-of-way, such as highways, railroads, or airports. Some of the impacts could potentially result in injuries or fatalities to private citizens.

Thus, in order to provide a more complete discussion of site safety, it is necessary to review the laws and regulations established by OSHA relating to construction activities. There are three basic OSHA definitions to keep in mind when discussing site safety:

1. Host Employer. OSHA makes it clear that the Host Employer (usually the Project Contractor) is responsible for the safety of its own employees and for all persons who visit a construction site; referred to as guests. In general, OSHA declares that the Host Employer must provide a working environment that is safe for whatever type of construction activity is being performed. For sites with multiple Project Contractors, OSHA provides additional guidance about which firm would be considered the “Controlling Employer.”
2.  Competent Person is defined by OSHA as someone tasked both with “recognizing” a potentially unsafe working condition and who is then “authorized” to take corrective action. Hence, and by definition, a Competent Person must be employed by the Host Employer.
3. Qualified Person is defined by OSHA as someone who “by degree, certificate, or professional standing or who by extensive knowledge, training and experience has successfully demonstrated his (or her) ability to solve or resolve problems relating to the subject matter, the work, or the project.” Hence, it is not at all difficult to see how the definition for a Qualified Person could be applied to a Design

These three definitions – who is responsible, who is competent, and who is qualified – are central to everything that will be discussed throughout this series. Thus, design firm should strive to make certain that these three definitions are clearly described in its agreement for services with the Project Owner and forthrightly implemented during construction. Contractual confusion with respect to the above three individuals can result in extremely troubling legal controversies with respect to site safety.

This is Part 1 of a five-part series about site safety. If you are interested in this topic, then you may want to make copies of each part for later reference. Site safety may seem like a remote responsibility as compared to everything else a design firm must implement in order to bring a project to fruition. However, any firm becoming involved in a lawsuit where someone is injured or killed at a construction site, quickly learns how expensive and troubling it can be for the firm as well as its employees.