One category of professional liability claims against architects and engineers are those that arise out of construction worker injuries. Here are some points to consider when faced by a construction worker injury claim.
Architects and Engineers can sometimes find themselves involved in professional liability claims arising out of injuries at construction sites. By way of introduction these kinds of claims can be broken down into several categories that will be explored further in the next few posts. First we have construction related injuries sustained either by workers at the construction site or by construction site passers-by. The other broad category of injury claims against design professionals can arise out of allegedly dangerous conditions at the finished project. Here we will explore some of the characteristics of construction site worker injuries that can get a design professional involved in claims and lawsuits.
Construction Worker Scenario
A number of subcontractors are working at a busy construction site. Periodically the design professional appears at the site ‑ perhaps wearing a white hard hat indicating a supervisory role. As with any construction site, there are numerous hazards. Tools, materials, and partially completed work combine with a succession of workers and environmental factors such as cold, wind and precipitation to increase the hazards. One of the workers drops something or stumbles and falls sustaining injuries. The design professional might first become aware of the accident one or two years later - when served with a summons and complaint just before the statute of limitations is about to run.
When an accident occurs at the construction site it should not be surprising that an effort will be made to hold someone accountable. Any authoritative-looking person at the site - including the design professional or owner's representative - is a potential target. The claimant's objective is to prove that this authoritative-looking person was in charge and, therefore, could have prevented the accident and/or the conditions that caused the accident.
History and Perspective
This type of scenario used to arise more frequently before changes in the law. In Illinois the Illinois Structural Work Act used to provide a basis for numerous lawsuits against design professionals and quite a collection of cases interpreting it. Many years ago, the Illinois Structural Work Act was repealed and the number of construction site injury lawsuits against Architects and Engineers subsided. Other states may have relevant statutes but in most states plaintiffs have to rely on case law.
A litigious climate, enterprising and creative plaintiff lawyers, an ever increasing emphasis on accountability, and the accepted view that society and law should find a way to make an injured individual whole are some of the social and legal factors that contribute to making the potential for construction injury liability a concern that should not be ignored by design professionals.
The expectation is that Workers Compensation statutes in conjunction with OSHA safety standards should cover most of the construction site injury risk. However, Workers Compensation Statute limitations on recovery and prohibitions on recovering damages from a worker's employer sometimes leave an injured worker looking for other sources of recovery. Often the injured worker looks to other (not employer) contractors at the construction site. Sometimes the options available to an injured construction worker can channel such construction injury claims toward design professionals.
While the design professional's options for dealing with the litigious climate and other social trends are limited to lobbying legislators, specific protective measures can be implemented through contract provisions, techniques in providing the service and methods used in addressing the claim or suit when it arises. These will be addressed in the next few posts. For now, we continue with an overview.
Options for Seeking Resolution
Once the design professional is served with the suit papers, the injury scenario can follow different paths toward conclusion. Often the defense pursues a motion for summary judgment on the basis that the design professional either had no on-site responsibilities or had only limited "observation" responsibilities. This is contrasted to the general contractor's responsibility for "means, methods, and techniques" and for "site safety." The defense argument is that the design professional, therefore, cannot be held liable for the injury.
If fortunate (well-prepared), the design professional can secure a summary dismissal. This is usually at a cost of up to several thousand dollars and can be within the professional liability policy deductible. The process represents an inconvenience and, if frequent, could be a financial drain on the design firm even when no serious liability issues arise.
If less fortunate (not as well-prepared), the design professional is not summarily dismissed and remains in the suit because his/her on-site role can be disputed. For example, the design professional’s actions at the construction site were inconsistent with the responsibilities defined in the service contract. This can lead to substantial costs of discovery (responding to requests for documents, giving and taking depositions), and ultimately, participation in the trial. Understanding and preparing for the construction worker claim scenario reduces the risk of becoming named as a defendant and can reduce the cost of removal from the suit if it cannot be avoided.
In summary, one of the risks that an architect or engineer faces is becoming a defendant in a lawsuit arising out of a construction site accident resulting in injury. There are a number of actions that can be taken to reduce and provide for that risk.
This article expresses ideas for consideration and should not be taken as recommendations applicable to any specific situation. When making a decision on how to address a specific situation consulting with an experienced attorney is recommended.
No. 9 - Revised 10/18/2016
© 2016 John Wersyn