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.
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 worksite 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.
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