OP-ED: Review of Design Professional Liability for Construction Site Safety
Daily Journal of Commerce Oregon
While architects and engineers take responsibility for the safety of the buildings they design, they usually are not responsible for protecting the property or the people on-site during construction. If a finished building falls because of improper design, the architects and engineers who stamped the drawings will be the prime suspects for the failure.
It is the general contractor, however, who is usually responsible for keeping the work site safe while the building is under construction. It is the accepted standard in the construction industry that the general contractor is responsible for the physical protection of the construction work and the people on-site – workers, visitors, and the general public – while the construction work is ongoing.
The owner can have a role in insuring the property and securing the property as a whole by purchasing builder’s risk insurance and perimeter security depending on the nature of the property and project. However, the general contractor is the one on-site daily, and in the best position to control the work site and the people allowed on-site as well as enforce safety precautions. This said, by contract, course of performance, or even local building code requirements, architects and engineers may be unwittingly exposing themselves to liability for construction site injuries.
This industry standard is reflected in a number of places. OSHA often requires contractors to develop a site specific safety plan. Even if not legally mandated, a contractor site specific safety plan is wise from a safety standpoint and a liability perspective. If someone is hurt, the contractor can show in its plan that it took all the necessary reasonable precautions.
It is important to note that these OSHA plans are not usually the responsibility of the architect or engineer. Further, Oregon Revised Statute 30.785 generally protects architects and engineers from liability for construction site injuries covered by Oregon’s workers’ compensation system. It arises from the failure of the worker’s employer to comply with safety standards on the construction project, such as the contractor’s site specific safety plan. This protection is strictly limited, however. The architect or engineer can assume such liability by contract, and the statutory protection does not cover the “negligent preparation of design plans or specifications.”
As for assuming responsibility for work site safety by contract, the standard AIA construction form contracts (produced by the American Institute of Architects) contain several protections and disclaimers for design professionals. The standard architectural services contract form, AIA Document B101™ – 2017, § 18.104.22.168, specifically limits the architect’s responsibilities: “The Architect shall not have control over, charge of, or responsibility for the construction means, methods, techniques, sequences or procedures, or for safety precautions ... The Architect shall be responsible for the Architect’s negligent acts or omissions, but shall not have control over or charge of, and shall not be responsible for, acts or omissions of the Contractor or of any other persons or entities performing portions of the Work.”
Likewise, the standard general contractor form, general conditions, AIA Document A201® – 2017, § 4.2.2, places the responsibilities on the contractor: “The Architect will not have control over, charge of, or responsibility for the construction means, methods, techniques, sequences or procedures, or for the safety precautions and programs in connection with the Work, since these are solely the Contractor’s rights and responsibilities under the Contract Documents.” The AIA Document A201® – 2017 goes on in Article 10 to specifically assign the safety responsibilities to the contractor: “The Contractor shall be responsible for initiating, maintaining, and supervising all safety precautions and programs in connection with the performance of the Contract ... The Contractor shall implement, erect, and maintain … reasonable safeguards for safety and protection, including posting danger signs and other warnings against hazards; promulgating safety regulations; and notifying the owners and users of adjacent sites and utilities of the safeguards.”
Regardless of these general legal and contractual provisions disclaiming responsibility for work site safety, architects and engineers can find themselves either necessarily or unwittingly involved in safety measures. Sometimes it is unavoidable. Highly technical work on mechanical equipment may require an engineer to evaluate and specify the procedure for the work, exposing the engineer to liability should anyone or anything be hurt during the procedure, and likewise with civil or structural engineering work on existing structures or sites with unknown or latent characteristics.
But these risks are expressly understood as being part of the job and can be planned for, mitigated, and, if nothing else, insured against. On the other hand, sometimes the risks can be inadvertently or unintentionally assumed. If the standard disclaimers are altered during contract negotiations, the parties may not realize that by doing so, they might shift responsibilities between the parties. In any project there could be “mission creep,” where an architect or engineer specifies a procedure not realizing it is outside their scope of work but implicates workplace safety.
For example, the City of Portland sometimes requires an occupancy safety program to obtain permits for work on occupied buildings – something that requires a written plan stamped by an architect or engineer (Engineering Guide #1, 2001). Once this plan is stamped, the architect or engineer is responsible for any errors, and thus any injuries arising from those errors, on the plan. Finally, suppose during a site visit, the architect or engineer becomes aware of unsafe conditions. In that case, they may have a duty to report those unsafe conditions to the owner and authorities, or risk liability for those injuries.
As with any legal risk facing a professional in the construction industry, the best guard against risks and liabilities, known and unknown, is to consult legal and insurance consultants before and during a project to understand the risks and how to protect against them.
The opinions, beliefs and viewpoints expressed in the preceding commentary are those of the author and do not necessarily reflect the opinions, beliefs and viewpoints of the Daily Journal of Commerce or its editors. Neither the author nor the DJC guarantees the accuracy or completeness of any information published herein.
Column first appeared in the Oregon Daily Journal of Commerce on May 13, 2022.