There’s a push for architects and engineers to consider the safety of construction and maintenance workers when designing new structures.
“When you build a new house, make a parapet around your roof so that you may not bring the guilt of bloodshed on your house if someone falls from the roof.” Deuteronomy 22:8 (New International Version).
What is prevention through design? A concept that dates, perhaps, to the days of the Old Testament is getting a fresh look. Known as Prevention Through Design, or PtD for short, some advocates for construction safety are urging that design professionals consider the safety of construction and maintenance workers when designing new structures. In November 2018, the American Society of Civil Engineers published a provocative article in the Journal of Legal Affairs and Dispute Resolution in Engineering and Construction, titled, “Prevention through Design: Promising or Perilous?” The article discussed the benefits and risks of PtD. Several other names are used to describe this movement. For example, some call it “Design for Construction Safety,” or “Construction Hazards Prevention through Design.” In the U.K. it is called simply “Safety in Design.” All mean essentially the same thing, that architects and engineers should be considering means and methods of construction when they design buildings and structures. This concept, of course, is totally contrary to the current thinking that design firms design for the end result, the finished building or facility, and it is up to the contractor to determine how to best – and most safely – build it. So-called “means, methods, and techniques” of construction are left solely up to the contractor. Well, that concept could change if the proponents of PtD have their way.
It’s a dangerous industry. Nobody can deny the statistics put out each year by the U.S. Department of Labor, that construction is one of the nation’s most dangerous industries in terms of injuries and loss of life. Due to state workers’ compensation laws, however, which grant immunity to the employer of the injured worker (despite even OSHA citations for violating safety standards), plaintiffs’ lawyers often sue the design professional (who is not immune) claiming violation of some duty owed to the worker. Insurance claim statistics from 1999 to 2008 show that about 3 percent of all claims against design professionals came from injured workers. Suits by injured workers led the design community to clarify responsibility for site safety decades ago in the standard contract documents. For example, the AIA’s A201 General Conditions of the Contract for Construction (2017 edition) clearly states: “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.”
This concept has become standard in most U.S. design and construction contracts and is accepted by the industry and its sureties and insurers as a fair allocation of risk. As the ASCE 2018 article points out, decades of court cases decided under these standard contracts have resulted in a fully developed body of case law and precedent upon which design firms have relied. Courts hold, generally, that: “Unless [an architect or engineer] has undertaken by conduct or contract to supervise a construction project, he is under no duty to notify or warn workers or employees of the contractor or subcontractor of hazardous conditions on the construction site.” At least ten states have enacted legislation that expands worker’s compensation immunity to the design professional, granting them immunity from injured worker claims, with two exceptions: 1) If responsibility for safety practices is specifically assumed by contract; or, 2) If the accident is due to the negligent preparation of design plans or specifications. Adoption of PtD could void this statutory protection if the design firm is sued for not preventing the accident “through design.”
PtD is gaining attention. In the U.S., PtD has only been discussed for about the past decade. In 2011, the American National Standards Institute and the American Society of Safety Engineers published a voluntary standard, ANSI/ASSE Z590.3, titled “Prevention through Design: Guidelines for Addressing Occupational Hazards and Risks in Design and Redesign Processes.” In 2016, the American Council of Engineering Companies’ Risk Management Committee published a white paper on “Design for Construction Safety.” However, in the U.K., this concept is more fully developed and is already written into the law. The U.K.’s Construction Design and Management Regulations of 2007 require designers to minimize the hazards associated with construction at as early a stage as possible. Two years before the U.K. initiative, the Australian government took a leadership role in requiring safer designs for construction. The National Standard for Construction Work, NOHSC:1016, promotes as one of its priorities “eliminate hazards at the design stage.”
What if PtD legislation is passed in the U.S.? The ASCE article suggests that if design professionals become the targets of litigation under PtD, the insurance industry may react by either increasing premiums or excluding coverage for such services. Both would have a significant impact and decades of case precedent might be thrown out the window, superseded by new legal obligations shifting site safety responsibilities to designers. One idea that has been floated is to promote PtD as a voluntary act protected under a “good Samaritan” concept. Many states have passed legislation giving immunity to those who volunteer, especially to design professionals assisting in times of a natural disaster or emergency. Why not expand this concept to PtD to encourage, not penalize, designers for considering the safety of workers?
Who best to bear the risk? Few, if any, standard college programs in architecture or engineering have courses in how to design for site safety. The state licensing examinations similarly do not test on this subject. So, while safety advocates might think that shifting safety risk to the design professional is the answer to reducing worker injuries, it is questionable whether designers are ready to handle that new role. Some firms might engage a trained safety consultant to review their plans, or hire a “peer reviewer” for PtD, but most will be at risk of handling a new legal obligation without proper training. Will owners increase fees to compensate for this training and review? Not likely. The ACEC 2016 white paper observes that, “To the extent design professionals lack this knowledge, training, and experience, they must acquire it for [PtD] to be successful. The potential cost of this training likely would be substantial, and would include a significant investment of employee time as well.” Training architects and engineers on PtD will take years, and require new college curriculum, seminars, workshops, and, perhaps, even certification in “safety by design.” We have to ask: Are design professionals really the best ones to take on this risk?
A review by the contractor and, perhaps, trade subcontractors during design development could point out areas in which safety might be improved through design. But in this scenario, the design firm will be relying on the expertise of the construction community to advise on safety. By adopting their recommendations, who will bear the risk? Contractors and subcontractors who enjoy workers’ comp immunity might resist contract clauses that require them to indemnity and defend the design professional who relies on their input in PtD implementation, even if that is where the risk is best placed, on the team member most knowledgeable in site safety.
Safe harbor needed. When the Americans With Disabilities Act was enacted in 1990, it provided broad principles for the elimination of discrimination against persons with disabilities. Congress charged the U.S. Attorney General to issue more specific standards for accessibility under Title III of the ADA. The Department of Justice adopted the ADA Accessibility Guidelines for Buildings and Facilities, which provided a sort of “safe harbor” for design professionals, by scripting out exactly what height and spacing, or slope, was best suited for accessibility. As one court stated: “The ADAAG Standards act as a safe harbor. A designer who adheres to the letter of those standards, as interpreted by the courts and DOJ, ordinarily will be in compliance with the ADA regulations, at least with regard to the particular design elements covered by those standards.” If PtD becomes law, it seems logical and fair that the industry, and government, should provide similar guidance for design professionals on just how to best address safety “through design.”
Conclusion. We have to admit that construction is dangerous work – the statistics prove that. Most construction companies take safety very seriously and work hard to train all employees on “safety first.” Can we do better, however, if designs better accommodated the worker? Certainly. But this has to be well thought out, and the risks need to be allocated to those best trained and able to handle them. PtD has potential to reduce worker injuries but only if those most knowledgeable in construction means and methods are giving the input, and that is not necessarily the design professional.
William Quatman, FAIA, Esq., is general counsel and senior vice president at Burns & McDonnell Engineering Co. He can be reached at firstname.lastname@example.org.