AEC firms must be diligent during design and construction to avoid becoming ‘responsible’ for worksite injuries or death.
Although site safety generally is the responsibility of construction contractors and subcontractors, when injuries or deaths occur at a worksite, design firms may also be the targets of related litigation and claims. Site safety is complicated and a function of various federal, state and local laws, regulations, codes, legal precedents, and your contract, any of which may affect how a lawsuit is resolved.
Ames & Gough recently commissioned a white paper on site safety for design firms by noted engineering/construction authority Gary Brierley, Ph.D. (To request a free copy of the white paper, email me.)
Here are some key exposures for design firms described in the paper and potential remedies:
For design firms, protection against liability for site safety starts with contract clarity, which needs to be maintained throughout the execution of your work. This may be increasingly challenging given the growing popularity of design-build and integrated project delivery methods, which often call for “shared” responsibilities and collaborative efforts.
However, keep in mind, as a design firm, disclaiming site safety responsibility is good for your firm as well as for the owner and the project because it places the responsibility for accidents and related risk with the party presumably best suited to manage it – the general contractor or the design-build prime.
In this regard, AEC firms need to be aware of key OSHA definitions that apply to site safety, both for the protection they may provide as well as to understand potential risk. For instance, OSHA defines the “host employer” (usually the project contractor) as responsible for construction site safety of its employees and all others. Additionally, a “competent person” employed by the host employer is tasked with “recognizing” potentially unsafe working conditions and is “authorized” to take corrective action. So far, so good – neither of these statutorily defined roles should fall to the design firm.
On the other hand, OSHA defines a “qualified person” as someone who “by degree, certificate, or professional standing … has successfully demonstrated … ability to solve or resolve problems relating to the subject matter, the work, or the project.” This definition could apply to design professionals.
So, it’s important for design firms to work with their legal advisors to make sure safety roles and responsibilities are clearly described in all their agreements. They should also scrutinize agreements for potentially over-reaching language that could hold design firms responsible for site safety exposures. Consider adding language that disclaims site safety responsibility while affirming that role as the GC’s.
Design firms should request project owners to contractually require the project contractor to “… indemnify and hold harmless the project owner and design firm for all costs, damages, or losses arising out of or relating to the means and methods of construction or for the safety procedures related thereto.”
With respect to job site safety in their agreements with project owners (or the design-builder), design firms might consider requesting clarifying language, such as the following:
The design firm shall not be responsible for job site safety during construction which is the sole responsibility of the host employer. At no time and under no circumstance will any of the design firm’s employees advise on, issue directives for, or assume control of job site safety. In particular the competent person as defined by OSHA shall be employed by and report directly to the host employer. When the design firm’s employees are on site during construction they are there as guests of the host employer and shall be trained in and agree to abide by all aspects of the host employer’s Safety Program.
Similarly, design firms might insert the following wording for “services during construction:”
When the design firm’s employees are on site during construction they are there to observe and monitor construction activities relating primarily to the design intent of the finished facility. At no time and under no circumstance will the design firm’s employees supervise, direct, or control the project contractor’s means, methods, techniques, sequences or procedures used for construction of the finished facility or, more importantly, for any of the temporary structures required for that construction. The project contractor is and shall remain fully responsible to accomplish all of the work as specified in the Contract for construction. The design firm is also not authorized to stop the work which action can only be taken by the project owner’s representative who signed the Contract for construction.
Beware onerous flow-down requirements. A potentially serious problem for a design firm can occur when it is a subconsultant to a prime designer that seeks to flow-down all of its responsibilities with the project owner to its subconsultants. Lower tier design firms should carefully review the superior document to understand their potential responsibilities under the prime agreement. In some instances, they may choose to walk away from an assignment if accommodations cannot be made.
Whenever injuries, deaths, or private property damage occur on a project and a claim is filed against a design firm, the firm should immediately notify its insurance company and obtain legal representation. Talk to your insurance broker about submitting the claim to your professional liability carrier and to your general liability carrier. The latter may be obligated to defend the claim and those defense costs typically do not erode the limit of liability. The design firm’s counsel typically will use experts to investigate the cause of the accident and review all contracts and agreements related to the project. In addition, OSHA will likely conduct its own investigation, which may have a significant impact on the legal proceedings.
Design firms must be diligent during design and construction to avoid becoming “responsible” for site safety. They should consider using outside attorneys to review complicated or potentially onerous contract requirements and consult their insurance advisors for assistance and related risk management.
Brett Gough is a senior vice president and partner of Ames & Gough. He is based in the firm’s Boston office and can be reached at email@example.com.