by | Jan 5, 2021 | architects and engineers, contractors and construction, Risk Management

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 target of litigation and claims. This Information Alert, the fourth in the Ames & Gough five-part series on site safety, discusses potential issues for design firms that provide construction management services and measures for them to avoid or manage related exposures.

In general, the project contractor and all of its subcontractors are responsible for site safety; however, it is not uncommon for a design firm to be sued if someone is injured or killed at a construction site. Unfortunately, there is very little a design firm can do to avoid being sued irrespective of what is written in the various contract documents. As a consequence, in these situations, design firms may be forced to defend themselves against expensive lawsuits with only the outcome in question.

This Information Alert focuses primarily 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 inherently unpredictable ways that could result in “accidents,” such as trench collapses. Even so, many points discussed in this Information Alert also apply to vertical building projects and projects procured using a design/build format.

About the Ames & Gough Site- Safety Series

Ames & Gough commissioned noted engineering/construction authority Gary Brierley, Ph.D., to prepare a white paper to help design firms understand and navigate site-related safety issues. For your convenience, we are presenting the white paper as a five-part series. This Information Alert is the first part of the series, which will include the following:

Part 1: Introduction to Site Safety

Part 2: Site Safety – An Action Plan for Design Firms Hired by Project Owners

Part 3: Site Safety – An Action Plan for Design Firms Hired by Project Contractors

Part 4: Site Safety – An Action Plan for Design Firms That Provide Construction Management Services

Part 5: What Happens if an Accident Does Occur and Your Firm is Named in a Claim?

Site visits by design professionals

A variety of design professionals typically visit a site during construction on behalf of the owner to observe and monitor work being performed and to make certain the finished facility is being constructed in a manner consistent with the design. Sometimes, however, design professionals may be present at the request of the project contractor to comment on a construction procedure or to help resolve issues that can arise during the course of the project.

For complex projects, the owner might also retain a construction management firm with a staff of full-time professionals at the site observing and monitoring the project, including construction of all temporary structures and the finished facilities.

Note, however, that in accordance with OSHA regulations, all the persons listed above are at the site as guests of the Host Employer (i.e. almost always the project contractor). None of those guests are required to assume the role of the project contractor’s Competent Person, even if they are present at the site on a full-time basis.

Often, when an accident occurs at a site, the first statement made by someone representing the injured party is that “everyone is responsible for safety” and, by implication, that “everyone” must, therefore, be responsible for that injury; in fact, nothing could be further from the truth.

Site “guests” and safety

Everyone is not responsible for site safety; only the project contractor is responsible for instituting the safety program and the project contractor’s workers are themselves primarily responsible for implementing that program in a proper manner. A guest at the site is responsible for becoming informed (i.e., trained) about the project contractor’s safety program and for acting in accordance with the requirements of that program.

This “responsibility” for a guest could, however, extend to making observations if something about the safety program is not being implemented in a proper manner. If a guest at the site, including a design professional, observes something he or she knows is contrary to the safety program, then that observation should be brought to the attention of the project contractor’s competent person in an expeditious manner. Here is a format to accomplish that goal without the guest becoming responsible for the program, itself:

Dear Competent Person,

As a guest at your site and as someone who has been informed about my responsibility to be faithful to the requirements of your safety program it is my obligation to inform you that on   (date)   , I observed the following activity that I believe to be a breach of that program:

It must be noted, however, that by informing you of this breach I am not assuming responsibility for implementing your safety program or for acting as the Competent Person. I am, however, fulfilling my obligation to inform you about a situation that I believe to be unsafe both for your workers and for guests who are present at and/or performing field activities at your site.

Signed: Design Professional

Having been trained in the project contractor’s safety program, site guests have the “opportunity” to point out lapses in that program without becoming responsible for the program. Again, those observations must be made in a manner faithful to appropriate laws, regulations, codes, and legal precedents applicable to site safety.

Lawsuit reveals design firm risks

Unfortunately, the above situation is not always accomplished in a proper manner as an often cited case in New Jersey indicates. Carvalho vs. Toll Brothers, involves a worker killed in a trench collapse whose family then sued the design firm.

The basic allegations are:

  • The contract for construction between the project owner and project contractor allocated broad “supervisory control” to the design
  • The construction contract also authorized the design firm to reject any work that did not comply with the plans and specifications and to stop the work, if
  • The project owner’s Agreement with the design firm, however, stipulated that despite the above, the design firm was not responsible for the means and methods of construction or for implementing the project contractor’s safety

Yet, during construction, the design professional did observe actual trench collapses and workers in unshored trenches, and took no action to address that situation. Based on the above alleged contractual stipulations and circumstances, the New Jersey court ruled that the design firm had a “duty to exercise reasonable care in order to avert harm to the worker” largely as a result of “implications” that the design firm had become responsible for site safety. The court also stated that “the actual awareness or knowledge of the risk of harm is also significant in determining the fairness in imposing a duty of care.”

This case shows how a design firm can become “responsible” for site safety as a result of inappropriate contract language and/or inappropriate actions. For instance, the contract for construction (i.e., not the project owner’s Agreement with the design firm) authorized the design firm to supervise the project contractor, to reject unsatisfactory work, and to stop the work. This case should make design firms wary of this language and they should seek to have it stricken from any agreement or contract.

In general, design professionals should be at the site primarily to observe and monitor work being performed for the finished facility – not the temporary structures or the means and methods of construction. Finally, the design firm should not have been authorized to stop the work; only the project owner, as a signator to the construction contract, should be authorized to stop the work.

It’s arguable that the design professional, as a guest at the site, had the opportunity to point out the unsafe trenching practices as those activities might have impacted the design firm’s own employees and contradicted the project contractor’s safety program on which the design professional was trained.

Design firm contractual responsibilities

As mentioned, the project owner is responsible for negotiating each Agreement and Contract necessary for the project’s design and construction. These Agreements and Contracts can have significant consequences on how various roles and responsibilities for site safety are distributed among various parties. In general, the process begins with the Agreement signed between the project owner and the design firm responsible for designing the finished facility. It continues with the contract for construction signed by the project contractor. And it is completed with various Agreements for services to be provided by design professionals during construction.

However, during construction, the role and responsibilities for design professionals related to site safety can be complicated. For instance, project owners may assign some of its own design professionals to perform certain functions during construction; they may authorize the design firm designing the finished facility to perform complementary services; and/or they could hire a construction management firm for a third layer of professional activities.

Project owners typically can hire whomever they want to do whatever they want, and to try to impose on those parties whatever contractual stipulations they (or their attorneys) deem necessary. However, it is the design firm’s responsibility to either accept or reject those contractual stipulations. Thus, it is ultimately up to the design firm to establish the contractual stipulations under which it will operate and to ensure its responsibilities for site safety are clearly defined.

This is especially important for construction management firms, for which there is a wide perspective on the services they provide during construction – from simply observing and monitoring work on the finished facility to assuming total control over all aspects of construction, up to and becoming the Host Employer, i.e., the construction manager at risk.

While it may not be prudent for a construction management firm to become the Host Employer with respect to site safety, some construction management firms are willing to accept a broad range of these responsibilities.

In turn, the responsibilities assumed by a construction management firm may have repercussions for other design professionals present at the site. For instance, if the construction management firm assumes full responsibility for site safety, then all other site visitors would be guests of the construction management firm – and not of the project contractor. In such instances, it might also be easy for an outside observer, such as an attorney or “expert” representing an injured party, to “assign” the construction management firm’s responsibilities to all other design professionals present at the site; i.e., to be guilty by association.

If a construction management firm is present at the site, then all other design professionals present must: (1) coordinate with the construction management firm, and (2) make certain that their responsibilities for site safety are clearly defined and allocated compared to any responsibilities the construction management firm agreed to assume.

OSHA’s Multi-Employer Policy

One additional consideration for design firms providing construction management services is OSHA’s Multi-Employer Policy, which seemingly would apply to just about every construction project. As established by OSHA, each project entails four different types of employers: creating, exposing, correcting, and controlling. Here are brief definitions for each type:

  • Creating Employer – The employer that causes a hazardous
  • Exposing Employer – The employer whose employees are exposed to a hazardous
  • Correcting Employer – The employer responsible for correcting a hazardous
  • Controlling Employer – The employer with supervisory authority over the site and the power to correct safety violations. As defined by OSHA, control can be established either by contract or by the exercise of control in practice.

Although it is hard to imagine a design firm becoming a Creating Employer at a construction site, one might envision how a design firm’s employees could be exposed to safety hazards and/or become responsible for correcting safety hazards by being declared a Correcting Employer. This is especially true for a construction