With underlying facts showing less-than-stellar actions on the part of more than one player, the Mississippi Supreme Court has clarified and confirmed the applicable standard for when a design professional should be liable for safety on a construction project. The case is McKean v. Yates Engineering Corp., (Sept. 15, 2016).

Yates Construction was the general contractor for a multi-story medical building in Meridian, MS. The building included reinforced concrete slabs. As the first story slab was being poured, Yates Construction asked a representative of Yates Engineering (whether the two companies are related is not discussed in the opinion) to provide engineering services for scaffolding for the second-story formwork. The engineer provided a design that was not feasible, including for example calling for 24’ long 4x4 posts (they are not available in that length). The engineer's design was not followed in other ways, as well, noted but not explained in the decision. Workers who were injured when the scaffolding collapsed during the second-story concrete pour ultimately sued, among others, Yates Engineering.

The Mississippi Supreme Court addressed to what extent a designer may be liable for inspection and supervision, or otherwise to ensure safety during construction, in the absence of any contract requiring the same. Citing an earlier Mississippi appellate court decision that cited, in turn a Kansas Supreme Court decision, the MS high court enunciated a seven-factor test. Supervisory powers may go beyond the parameters of a contract, and invoke liability, based on the following:

(1) actual supervision and control of the work; (2) retention of the right to supervise and control; (3) constant participation in ongoing activities at the construction site; (4) supervision and coordination of subcontractors; (5) assumption of the responsibilities for safety practices; (6) authority to issue change orders; and (7) the right to stop the work.

Yates Engineering did not have any of these rights nor did it exercise any of these actions, and thus the engineer had no liability to the injured workers.