Personal injury plaintiff’s counsel can be crafty if not down-right devious. When a worker dies or sustains a serious injury on a construction site, lawyers who specialize in plaintiff’s personal injury work often swoop in and sue all of the project participants regardless of the participant’s involvement in or responsibility for the accident. These lawyers try to spread as wide a net as possible in order to capture the largest pool of potential contributors. They follow the maxim “shoot first, aim later.” The primary targets in construction accident law suits are usually the general contractor or construction manager – the party who by contract is typically responsible for maintaining site safety. In addition to suing GC’s or CM’s contractually responsible for safety, however, personal injury plaintiff’s counsel do not hesitate to sue design professionals who according to their contracts have no responsibility for safety issues. As most design professionals are aware Standard Form Agreements such as iterations of the AIA Owner/Architect Agreements include unambiguous provisions exempting architects from responsibility for safety. For example, article 188.8.131.52 in the AIA B101 (2007 edition) provides in part:
“The Architect shall not have control over, charge of, or responsibility for the construction means, methods, techniques, sequences or procedures, or for safety precautions and programs in connection with the Work, nor shall the Architect be responsible for the Contractor’s failure to perform the Work in accordance with the requirements of the Contract Documents.” (Emphasis supplied)
This contract clause is extremely important as it can serve as the basis for a dispositive motion and lead to the dismissal of the claim. In order for a plaintiff to prevail against a design professional in a personal injury case (i.e., a negligence claim), the plaintiff must establish that the design professional breached a duty that he/she owed to the plaintiff and that as a result of this breach, the plaintiff was injured. The key to defeating such a negligence claim is to show that the design professional did not owe a duty to the injured plaintiff, for example, to protect the plaintiff from injury. Contract clauses such as 184.108.40.206 above make it clear that – contrary to the plaintiff’s allegations of wrongdoing by the architect – the architect did not owe a duty to the plaintiff to maintain site safety. If the architect has no duty to maintain site safety, the architect can not be accused of “failing” to protect the plaintiff from injury.
This is a potent argument that often prevails but it is not failsafe. Seasoned plaintiff’s counsel understand that regardless of contract language in an Owner/Architect Agreement excepting the architect from responsibility for site safety, that architect by his or her conduct may assume broader responsibilities than are described in the contract. For example, if the architect participates in safety meetings with the contractor or actually directs or controls safety precautions on site, then the protections of clauses such as 220.127.116.11 are undermined if not obliterated. The rationale behind this result is that if an actor assumes by conduct responsibility for an act, that actor has a duty to perform that act reasonably safely – i.e., without negligence. One example of this concept is the person who while walking along a river sees a swimmer in distress and decides to try to rescue him. This Good Samaritan has no duty to save or protect the swimmer and can not be legally liable if they do not attempt a rescue and the swimmer dies. Once the Good Samaritan dives into the water and attempts to rescue the swimmer in distress, however, he assumes a duty to perform the rescue in a safe and reasonable manner. If something goes wrong with the rescue and the Good Samaritan inadvertently injures the swimmer, the Good Samaritan can be legally liable to the now injured swimmer. It doesn’t matter that the swimmer would have died but for the Good Samaritan’s rescue.
Turning back to the scenario of the injured construction worker, if the Owner/Architect Agreement (and/or the other contracts between the project participants) contain clauses such as 18.104.22.168 that make the contractor exclusively responsible for construction means and methods and maintaining site safety, the plaintiff’s counsel will focus her discovery efforts exploring if the design professional actually assumed duties beyond those established in the design professional’s contract. In a recent case I handled, the plaintiff’s counsel was able to support his argument that the design professional assumed responsibility for site safety by examining the design professional’s website. In this particular case an electrical subcontractor sustained significant, disfiguring facial injuries through an electrocution accident. He was injured when he worked on an energized electrical substation. He mistakenly believed that the substation had been de-energized and he failed to test a tie bus before he did his work. Following the accident, the lawyer for the injured worker sued everyone involved in the project including my client, the electrical engineer. By contract, the electrical engineer had no responsibility for maintaining site safety. During the construction phase the electrical engineer had only minimal site responsibilities. At the deposition of the electrical engineer the plaintiff’s counsel attempted to build a case against the electrical engineer by showing that the engineer was part of the “team” of project participants who controlled site safety. In support of this theory, the plaintiff’s counsel showed the electrical engineer a print out of the company’s website. For better or worse, this website included several aspirational statements that touted the firm’s “vision” and “values.” The website included marketing buzz words such as integrity, quality service, teamwork, and innovation. It also included an easily misconstrued statement that the engineer “customize[s]our mechanical and electrical design solutions so our clients can safely perform full maintenance, testing, and capacity expansions without affecting mission critical equipment or business operations.” (Emphasis supplied) During the deposition the plaintiff’s counsel pressed the electrical engineer to admit that the engineer followed these goals on the subject project. He asked such questions as “Isn’t it fair to say that on this project, consistent with the representations in your website, you customized the electrical design so that the owner could safely construct, maintain and test the substations?” The electrical engineer had a difficult time maneuvering through this conceptual mine field.
In the final analysis, language in a design professional’s website does not establish that design professional’s contractual obligations on a project but it creates enough uncertainty that it may make it difficult for the design professional to have a judge dismiss the plaintiff’s claims through a motion for summary judgment. If a design professional is unable to achieve summary judgment because of language in the design professional’s website, the plaintiff’s counsel has won a major battle. Most significant construction accident/death cases never get to trial. Instead, the defendants remaining in the case after all dispositive motions have been decided typically contribute money to the plaintiff and settle the case rather than risk a greater adverse verdict at trial.
The moral of the story is that design professionals would be well-advised to examine their websites to ensure that they do not contain language that: (1) arguably create duties that go beyond the design professional’s contractual obligations; and (2) could inadvertently prevent that design professional from being dismissed from a law suit.