Theories of Liability, Issues and Evidence in Worker Injury Cases

Disputes and claims are addressed and resolved within a legal framework.  Here are the key legal theories, issues, and evidence to be aware of when faced with a construction worker injury claim.

Social expectations are that injuries are to be compensated.  Healthcare insurance provides reimbursement for the cost of medical care necessitated for self-inflicted injuries. And either negligence law or workers compensation statutes provide for compensating the costs and losses resulting from injuries caused by others.  When it comes to construction site injuries workers compensation statute limitations and restrictions can lead an injured worker to seek compensation from a design professional with a presence at the construction site.

Being injured and motivated is not enough to create a basis for seeking recovery from a design professional with a presence at a construction site.  The injured construction worker must pursue some legal theory of liability.  The theories of liability necessary to hold a design professional liable are either statutory or common law.

Statutory theories are provided by "safe place to work" and "scaffold act" statutes.  Such statutes create a right of action and define circumstances under which suits can be brought.  Court interpretations further refine the rules for applying the statutes to design professionals.

Statutory Law Interpretation

Examples of attempts to apply a "safe place to work" statute in a suit against a design professional and the court interpretation can be found in the Wisconsin Supreme Court reports.  In Luterbach v. Mochon, Schulte, Hackworthy, (267 N.W.2d 13, Wis 1978), a case involving an excavation cave-in, the Wisconsin Supreme Court decided that since the architect was not an "owner" within the meaning of the Safe Place statute, it did not owe a duty under that statute to maintain the construction site in a safe condition.

In Hortman v. Backer Construction Co., Inc. (284 N.W.2d 621, Wis 1979), a later case involving an injury caused by a piece of lumber that blew off the top of a building under construction, the Wisconsin Supreme Court concluded that the architects were "employers" as defined in the Safe Place statute.  But the court further concluded that the agreement for services could be considered in determining whether a duty was owed by the architects to an employee under the statute.  In this case the architects were not in control of the premises and, hence, did not owe a duty to the employee under the Safe Place statute.

While the design professional was found not liable in both cases, it was still necessary to pursue costly litigation up to the Wisconsin Supreme Court to reach the end result.

The controversial and long ago repealed Illinois Structural Work Act (Ill. Rev. Stat., Ch. 48, par. 60, et. seq.) was another statute that encouraged numerous lawsuits against design professionals.  It provided, in part:

"that all scaffolds, hoists, cranes, stays, ladders, supports, or other mechanical contrivances, erected and constructed by any person, firm or corporation in the state for use in the erection, repairing, alteration, removal or painting of any house, building, bridge, viaduct or other structure shall be erected and constructed in a safe, suitable and proper manner, and shall be so erected and constructed, placed and operated so as to give proper and adequate protection to the life and limb of any person or persons employed or engaged thereon, or passing under or by the same, and in such manner as to prevent the falling of any material that may be used or deposited thereon ... Any owner, contractor, subcontractor, foreman or other person having charge of the erection, construction ... shall comply with the terms hereof ..."(emphasis added)

The courts often interpreted the applicability of this statute to design professionals.  The key issue – back in those days – focused on the definition of the phrase "having charge of”.  The Illinois Supreme Court made it clear that determining whether the design professional can be held liable under the statute depended on whether he/she can be considered "in charge of" the work.  The test for being "in charge" was the right to stop the work. (Miller v. DeWitt, 226 N.E.2d 630, Ill. 1967 and McGovern v. Standish, 357 N.E.2d 1134, Ill. 1976).  If the design professional did not have the right to stop the work then he/she was deemed not "in charge" and therefore was not be held liable.  Despite this clearly defined standard, design professionals were repeatedly brought in as defendants and incurred costs of litigation based on this statute.  Clear and unequivocal evidence of not being in charge was critical to securing a summary dismissal.  Fortunately for design professionals, the Illinois Structural Work Act is only of historical interest and can be useful to provide perspective on issues related to architect and engineer potential for liability for construction site accidents.

Common or Case Law

The second type of theory of liability available to the injured worker is found in common ‑ or court created - law.  The theory is that a design professional who negligently performs services causing a worker's injury should be held financially accountable.  To recover damages from the design professional, the injured worker must prove that the design professional owed the worker a duty of care, that the duty was breached, that the breach caused the injury, and that the worker sustained damages as a result.

As with statutory theories of liability, the key issue is whether the design professional was "in charge" of the construction activity.  Being “in charge” can be viewed as creating a duty to the worker.  If the plaintiff can show that the design professional was in charge, then it becomes a small step to hold the design professional at least partially accountable for accidents caused by unsafe work conditions.  Any evidence tending to conclusively show that the design professional was not in charge is crucial in pursuing a summary dismissal.  Such evidence includes provisions in the service agreement and construction contract as well as the design professional's conduct at the site.

Although the dominant issue is whether the design professional was in charge, some other issues that can impact liability exposure include:

(a)        Did the design professional's activities at the construction site expand the limited duties defined in the agreement for services?

(b)        Is the design professional entitled to indemnification from the general contractor under the project contracts and agreements? Under what conditions?

(c)        Do contributory negligence rules bar recovery or do comparative negligence rules allow apportionment of liability among a number of parties?

(d)       Are other potentially liable parties financially viable? This is not necessarily a legal issue but can have practical implications in determining who an injured person might pursue to recover damages.

(e)        Are damages claimed by the injured workman reasonable and supported by objective evidence?

(f)        Are there "jury appeal" factors to be considered in evaluating the claim?  Juries can be susceptible to influence by emotional considerations.

Issues of Law and Issues of Fact

Some of these are issues of law for the court, some are issues of fact for the jury, and others are questions for the parties in seeking to resolve a claim in the most cost effective manner.  As in all litigation there are controllable and not controllable litigation and liability factors.  The litigious climate and the applicable law are not controllable.  Since the applicable law has reached a relatively high degree of refinement in most states, the law is somewhat predictable.  In contrast, facts are often clouded by conflicting evidence.  The way the jury understands the facts to which the law is applied tends to control the outcome.  At least some of the evidence having a bearing on these fact issues can to some degree be controlled by the design professional.  This requires anticipation of potential scenarios and appropriate preparation.


The service agreement is important evidence in the defense of a design professional in construction accident litigation. If on-site responsibilities are clearly defined, the plaintiff has less room to allege and argue that the design professional was in charge and should be held liable. If, in contrast, the agreement is vague or poorly documented then the plaintiff will be able to argue that the design professional had a greater degree of responsibility for construction site activity.

From a consultant design professional’s point of view, the service agreement needs to clearly recite that the design professional is an observer who reports departures from the construction contract requirements to the owner.  This suggests the conclusion that it is the owner who has the ultimate authority to require the contractor to perform in accordance with contract obligations.  Documentation of the design professional's limited role at the site improves the chances of prevailing on a motion for summary judgment dismissing him/her from the suit.  Success in securing an early dismissal or summary judgment greatly reduces the cost of defense.

Of course, the negotiation of professional service contracts is often a reverse tug of war with both parties attempting to transfer as much risk as possible to the other side.  Service market conditions in recent years have favored the purchasers of services as design professionals tended to concede some of the risk transfer to win out in getting work assignments. .

Documentation of a limited role at the site, while important, can be insufficient.  The design professional's actions at the site must be consistent with contract agreements.  The design professional should not instruct the contractor nor the contractor's workers on what to do.  If the design professional is seen at the construction site giving instructions to workers, then he/she can arguably be viewed as being “in charge” despite contract provisions limiting services to observation and reporting.

If, despite a service agreement limiting the design professional's role at the site to "observation," the claimant discovers a document or a witness who will testify that the design professional appeared to be in charge, the design professional's defense costs go up dramatically.  The court will be forced to conclude that there is a question of fact.  The conflicting evidence on the design professional's role at the site becomes a question for the jury.  Thus, the design professional must prepare for trial unless the case gets settled.  Since document discovery, depositions, preparation for trial, and the trial itself are costly, the settlement value of the suit increases tremendously.

In conclusion, architects and engineers need to be sensitized to construction site accident liability exposure by reaching a better understanding of roles, responsibilities, and how courts and juries interpret service agreements and other evidence in reaching decisions.  And the final decisions reached are not the only consideration.  The costs of defense and reaching those decisions are no small consideration.

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. 10 - Revised 10/18/2016

© 2016 John Wersyn

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