Client Drafted Agreements and Job Site Safety

By Michael Welbel

Client Drafted Agreements and Job Site Safety

A design professional’s responsibility for bodily injury claims is primarily delineated by the owner/design professional contract.  However, by their conduct, a design professional can also unwittingly assume a more expansive duty and incur unnecessary liability exposure.

Professional society contracts drafted by organizations such as the American Institute of Architects (AIA) & Engineers Joint Contracts Document Committee (EJCDC) are carefully crafted and have been refined over the years to establish reasonable expectations and duties on the part of the owner and its design professional.  These have become generally recognized as “standard” agreements. Purchasers of design services, however, often times have a different sense of what is a reasonable agreement. When that occurs, the owner will either amend the standard form or provide their own contact. 

Owner drafted agreements are intended to set expectations consistent with the owner’s sense of what they want from their service providers.  Not surprisingly, these contracts typically favor the owner and, all too often, are employed for general use.  For example the owner might use the same contract for a variety of services such as construction or maintenance services with little regard for its applicability to design related work. 

Thus, non-standard agreements can expose the unwary design professional to liability exposures over and above what is customary.  Expanded or entirely new liability exposures can arise from many provisions including, the standard of care, contractual indemnification, construction administration (CA) services, etc.  For brevity’s sake, this post focus on job site safety issues. 

Construction by its nature is a hazardous undertaking. Workers, as well as third parties, get injured regularly.  Over the past fifty years or so courts nationwide have been defining and re-defining the design professional’s responsibility during the construction phases. Injured workers with limited remedy options against their employer under relevant workers compensation laws have ample reason to look for “deep pockets” elsewhere, further complicating the issue.

The result is multiple court decisions finding that design professionals are responsible for job site safety.  Some court decisions have held that a designer with “supervision” responsibilities is also responsible for job site safety. 

In response to this developing case law, the AIA in 1967 eliminated a number of problematic terms from its standard form, such as supervision and inspection.  Further, the designer’s role while performing CA services was also better defined to make it clear that the designer is not responsible for construction means, methods techniques, etc. or job site safety.  These obligations were specifically reserved for the contractor. 

A contractual provision stating that the designer is not liable for means, methods and safety can be your “get out of jail free” card in a job site injury claim.  For example, in Illinois if the designer is not contractually responsible for safety and there is no evidence that the designer injected themselves in safety matters, the claim is usually dismissed by way of summary judgment. The problem is that most client drafted agreements fail to limit the design professional’s duty as respects to means, methods and job site safety.  When faced with a non-standard contract be certain to add such a provision if one does not exist. 

A good contract alone is not a guarantee that you will not be found responsible for a construction site accident. Such duty can arise out of conduct notwithstanding the contract.  Design professionals tend to see themselves as problem solvers and want to be helpful. They want a good project for their firm and their clients.  Sometimes being helpful creates a duty where one would not otherwise exist.  This usually occurs during the CA phase of the project.

We have seen situations where the design professional on site makes a statement to a worker such as “don’t dig too close to that pipe”, or “I really think you guys need to tie down that ramp or someone might get hurt.”  Statements such as these will likely eliminate the early resolution of a claim in favor of the designer.  When one is not extricated early from litigation the ride can be long, expensive and painful.  Remember that while clients will often insist on using their own contract documents, care must be taken to avoid jobsite safety responsibility.  The designer and its entire team must also be cautious to not inadvertently interject themselves into these processes while performing their design related services.