Construction and Procurement Law News, Q3 2019

Project engineers should be wary of contractual language, as well as conduct, that may impose supervisory responsibilities to warn and protect employees of other contractors from dangerous conditions located on a project. A recent Mississippi Supreme Court case sheds additional light on this potential responsibility and liability.

In Waltman v. Engineering Plus, Inc., a case decided by the Supreme Court of Mississippi, an employee of the general contractor filed suit against the project engineer claiming that the engineer had an affirmative duty to warn him of a dangerous condition on the jobsite, which he failed to do. The trial court ruled in the engineer’s favor, on a summary disposition prior to trial, finding that the engineer had “no contractual or common law duty” to affirmatively warn the contractor’s employee of the dangerous condition. The contractor’s employee appealed this decision to the Supreme Court of Mississippi.

On appeal, the Mississippi Supreme Court noted that, for a project engineer to undertake a duty to warn or protect a general contractor’s employee from a dangerous condition, the project engineer must assume “the responsibility of maintaining the safety of the construction project,” either through contract or through its conduct.

The Court first addressed whether the project engineer had a contractual duty to warn the employee. The employee argued that since the prime contract stated that the project engineer was responsible for direct supervision of the project, the engineer affirmatively assumed a duty to warn all employees of the risks associated with the project. The court disagreed, noting that the prime contract specified that the general contractor was “responsible for all loss or damage arising out of the nature of the work . . . and for all the risks of every description connected with the work for faithfully completing the whole work[.]” This contractual language, more detailed and specific than the broader supervisory language concerning the project engineer, limited the supervisory responsibility strictly to the general contractor. The Court therefore concluded that the project engineer did not assume a duty to warn the general contractor’s employee through the language of the prime contract.

The Court then looked at the project engineer’s actions. In Mississippi, courts look to a variety of factors in determining whether “an engineer ha[s] a supervisory duty outside the provisions of [a] contract,” including: “(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 responsibilities for safety practices; and (6) the right to stop work.” In considering these factors, the Court concluded that the employee failed to show any evidence that the project engineer engaged in any of the actions listed above. In fact, the only evidence provided by the employee was that the project engineer had knowledge of the dangerous condition. Knowledge alone, however, will not impose a supervisory duty according to the Court.

Although the Court did not find the project engineer liable, this case should caution engineers to become familiar with the contractual language that sets forth their project scope and responsibilities. If contract language explicitly requires the project engineer to undertake a supervisory role on the project, the engineer may have a duty to warn and protect employees of the general contractor from dangerous conditions. Engineers should also be mindful of their conduct on a project, above and beyond their contractual responsibilities, which may also imply a duty to warn and expose the engineer to potential liability to non-employees.