ConstructionRisk Report (September 2023)

Inside this Issue

• A1 - 1 Minute Video Series - Design Professional Contract Clauses
• A2 - Contractor Who Completed Work Years Earlier is Liable to Third Party where Patent Defect caused Injury
• A3 - Design Professional Could be Liable for Injuries sustained by Construction Worker

Article 1

1 Minute Video Series - Design Professional Contract Clauses

See similar articles: 1 Minute Video Series - Design Professional Contract Clauses

 

 

 

This article is published in ConstructionRisk Report, Vol. 25, No. 7 (September 2023).

Copyright 2023, ConstructionRisk, LLC

Article 2

Contractor Who Completed Work Years Earlier is Liable to Third Party where Patent Defect caused Injury

See similar articles: Construction Defect | out-of-possession contractor | Patent Defects | Restatement Torts – 385

Where an individual slipped and fell on steps defectively constructed by a contractor at a public library, her estate sued the contractor.  Trial court granted summary judgment on the basis that it concluded the applicable Restatement (Second) of Torts, section 385, protected the contractor from liability where the work was completed years earlier, contained patent defects that were know the library owner, and it was not repaired.  This was reversed on appeal with the court holding that the Restatement imposes liability on contractors to third parties for “all” defective conditions for which they are responsible.  The Restatement doesn’t limit liability to only those situations in which the contractor created a latent dangerous condition not apparent or obvious to the property owner.  Brown v. City of Oil City, 294 A.3d 413 (Penna. Supreme Ct, 2023).

 The Supreme Court of Pennsylvania carefully examined Section 385 of the Restatement of Torts and determined that it does not contemplate that a possessor of land’s knowledge of a dangerous condition caused by a contractor is relevant in determining whether the contractor has liability to third parties.   Other sections of the Restatement (e.g., Sections 403 and 404 condition the liability of the contractor on its awareness of the dangerous condition of project after its work has been completed, and imposes liability when it knew, or had reason to know, that its repair efforts caused it to become dangerous for its intended use.

In this particular case, the contractor in question finished installing stairs at the public library at the end of 2011.   A few months later the city began getting reports about imperfections in the concrete surface of the stairs.  The city notified the contractor of the condition and advised that the City believed the stairs were dangerous and defective. For several more yeas (2012 through 2015) the condition worsened but neither the City nor the contractor took any action to correct the problem.

Near the end of 2015 a library patron tripped on the deteriorated stairs and fell onto her head. She suffered traumatic injury that resulted in her death within a week of her fall.  In the complaint that the deceased patron’s family filed against the contractor, it was asserted that the contractor “knew or through the exercise of reasonable care should have known” of the unreasonably dangerous condition and increased risk of harm to third parties.  The complaint alleges that the contractor breached its duty to exercise reasonable care in the performance of its contractual obligations.

In granting the contractor’s motion to dismiss the case, the trial court found that the contractor couldn’t be liable to the third party because it owed no duty of care to them because the defect was not hidden or “latent” but instead was “patent” and well known to the library.   That decision was reversed by the first level appellate court that determined that an out-of-possession contractor is liable to third parties for all defects created by its work, whether patent or latent.  This was then affirmed by the state Supreme Court.  That court held the following:

“[A] contractor's liability under Section 385 does not hinge on whether the defective condition it caused is latent or patent. Rather, like the Commonwealth Court did below, and previously in Gilbert, we interpret Section 385 and comment c thereto as imposing potential liability on contractors to third persons for all defective conditions of structures on land which they are responsible for creating through their repair work. Similarly, we conclude that comment c serves only to clarify that the persons to whom a contractor is liable under Section 385 includes the possessor of land, when the dangerous condition is not readily discoverable by the possessor. Accordingly, we reject the contention that a contractor's liability to third persons is limited to only those situations in which he has created a dangerous condition that is not readily apparent or obvious.”

In reaching this decision, the Court stated that its holding doesn’t alter a possessor of land (such as the library) from having potential liability to third parties for injuries sustained due to dangerous conditions on their property, and doesn’t prevent a plaintiff from suing both the possessor as well as the contractor for their injuries.

Comment:  The court decision doesn’t explain why no action had been taken for several years to correct the problems with the library stairs.  Even if a contractor might be successful in some states in making the argument that where the project owner knows of the problem then that owner (and not the contractor) is responsible for taking future corrective action to prevent injuries, it may be wise for the contractor to make the repairs.  Regardless of whether the contractor might successfully assert that a third party couldn’t make a claim against it, its client could likely make a breach of contract claim or take some other action to recover costs of repairing the defective work so long as the statute of limitations and the statute of repose time periods have not lapsed for making such claims.

 

About the author: Article written by J. Kent Holland, Jr., a construction lawyer located in Tysons Corner, Virginia, with a national practice (formerly with Wickwire Gavin, P.C. and now with ConstructionRisk Counsel, PLLC) representing design professionals, contractors and project owners.  He is founder and president of a consulting firm, ConstructionRisk, LLC, providing consulting services to owners, design professionals, contractors and attorneys on construction projects.  He is publisher of ConstructionRisk Report and may be reached at Kent@ConstructionRisk.com or by calling 703-623-1932.  This article is published in ConstructionRisk Report, Vol. 25, No. 7 (September 2023).

Copyright 2023, ConstructionRisk, LLC

Article 3

Design Professional Could be Liable for Injuries sustained by Construction Worker

See similar articles: Site Safety

Where a construction laborer was injured when a wall collapsed on him while demolishing part of a building, the laborer sued the project architect and the project engineer for alleged negligence in preparing and approving design plans and specifications and in failing to adequately monitor and supervise the execution of the plans to ensure safety at the jobsite.  The trial court granted the architect’s motion for summary judgment.  That was reversed on appeal with the appellate court holding that there was a genuine issue of material fact as to whether the architect was aware of the contractor’s deviations from contract requirements and whether they failed to identify and report an unsafe condition.  The contract documents expressly made the contractor responsible for means and methods and site safety responsibility.    But the contract also stated that the architect had a duty to report any deviations from the contracts.  The court concluded that a jury must decide whether the architect failed to identify and report an unsafe condition in this case.  Bonilla v. Verges Rome Architects, 2023 WL 3371559 (La. App. 4 Cir. 2023).

In opposing the architect’s motion for summary judgment, the laborer argued that In opposition to there were genuine issues of material fact as to whether VRA owed him a duty to provide a safe work environment, and whether that duty was violated.  In support of its motion, the Architect submitted an affidavit stating the following:

• In accordance with the General Conditions, VRA was neither responsible for nor controlled the ‘means, methods, safety precautions and programs.’

• In accordance with the General Conditions, Tuna was ‘entirely responsible’ for all construction means and methods of the Project.

• While VRA made periodic site visits and observations in accordance with the Design Agreement, the General Conditions clearly provide that these actions ‘shall not be construed as supervision of actual construction.’
• In accordance with the General Conditions, Tuna was ‘responsible for all cutting, fitting, or patching that may be required to complete the Work.’
• In accordance with the General Conditions, Tuna was ‘responsible for initiating, maintaining and supervising all safety precautions and programs’, along with having to take reasonable precautions to prevent damage, injury, or loss of employees or other persons affected by the work.
• In accordance with the General Conditions, Tuna was responsible ‘for the adequate strength and safety of scaffolding, staging, and hoisting equipment and for temporary shoring, bracing and tying.’
• Pursuant to the contractual obligations set forth in relevant Contract Documents, VRA and I did not owe a duty to maintain, monitor, or ensure the safety of the Plaintiff on the Project.

The architect’s contract provided the following:

“The Consultant [VRA] shall have no 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 Consultant be responsible for the Contractor's failure to perform the Work in accordance with the Construction Documents. The Consultant shall not have control over or charge of, and shall not be responsible for, acts or omissions of the Contractor or of any other persons or entities performing portions of the Work."

And the General Conditions of the construction contract provided the following:

“2.3 The Consultant and the Owner will provide general administration of the construction contract with the Consultant providing the administration of the Contract as related to the actual construction process and technical questions arising out of said construction. The undertaking of periodic visits and observations by **7 the Consultant or his associates shall not be construed as supervision of actual construction.

2.4 The Consultant will visit the site periodically to familiarize himself with the progress and quality of the work. On the basis of his observations he will keep the Owner informed of the progress of the work and shall submit weekly reports with photographs. The Consultant shall endeavor to protect the Owner against defects in the work.

2.5 The Consultant will not be responsible for nor control the construction means, methods, safety precautions and programs. The Consultant will not be responsible for the Contractor to carry out the work in accordance with the Contract Documents, or the Contractor's acts or omissions or the acts or omissions of his Subcontractors or employees.

4.7 The Contractor shall direct the work using his full attention and shall be entirely responsible for all construction means and methods.

10.1 The Contractor shall be responsible for initiating, maintaining and supervising all safety precautions and programs. He shall take all reasonable precautions for the safety and shall take all reasonable steps to prevent damage, injury, or loss of the work itself and all material and equipment incorporated; or property at the site or adjacent thereto, and all employees or other persons affected by the work.

10.3 The Contractor shall erect and maintain, as required by existing conditions and progress of the work, all reasonable safeguards for safety and protection....

10.6 The Contractor shall be responsible for the adequate strength and safety of all scaffolding, staging and hoisting equipment and for temporary shoring, bracing and tying.

10.8 The Contractor shall designate a responsible member of its organization at the site whose duty shall be the prevention of accidents. This person shall be the Contractor's superintendent unless otherwise designated by the Contractor in writing to the Owner and the Consultant.”

In deciding that the summary judgment was improperly granted, the appellate court focused on the duty the architect had under its contract to perform site observation and report defects and deficiencies observed in the contractor’s work.  The contract provided the following:

“On the basis of its on-site observations, the Consultant will keep the Owner informed of the progress and quality of the work performed, and report known deviations from the Contract Documents, deviations from the most recently approved construction schedule, and shall endeavor to protect the Owner against defects and deficiencies observed in the Work.”

Deposition testimony is what appeared to persuade the court that the architect may have more of a responsibility in this case than could be determined through a motion for summary judgment.

In his deposition, an architect acknowledged he had a duty to visit the site and observe the work to “make sure that it’s being performed in accordance with the design content and the drawings.”  A Project Manual that was included in the Design Contract with the City required the contractor to use methods “least likely to cause damage to the elements retained or adjoining construction.”  It also required that “in general, the contractor was to use hand or small power tools designed for sawing and grinding, not hammering or chopping.”  The Project Manual also required the contractor “to engage an engineer to perform an engineering survey to determine whether removing any element of the building might result I structural deficiency or unplanned collapse during demolition.”  The deponent testified that he didn’t know if the contractor engaged such an engineer.

Ten photographs were presented by the deponent showing the condition of the jobsite on the day of the accident – before it happened.  One photograph showed the laborer in question standing on a scaffolding with his hand on the roof of the vault while much of the side wall and a portion of the front wall had already been demolished.  No temporary supports were in place at that time.

The deponent testified that he didn’t know whether temporary supports were necessary because he didn’t know how the contractor proposed to demolish the vault.  In the laborer’s deposition, the laborer testified that he was instructed by his supervisor to stand on the roof of the vault and break it up with a jackhammer.   That would be contrary to the instructions in the Project Manual.

Expert witnesses provided opinions in support of the contractor.  One expert stated:

“It is clear to me that even a layman who is not a trained design professional should have recognized that partially removing the walls without providing substitution supports made the ceiling slab unstable. There is no evidence in Taffaro's pictures of substitute supports in place. It should have been obvious to everyone that it was more dangerous to jackhammer on the ceiling slab after having remove parts of two of its support walls.”

The court noted the following:

“VRA (the Architect) acknowledged that it had a contractual duty to make site visits to make sure the contractor was operating in accordance with the design plans. As previously noted, VRA also had a contractual duty to report any deviations from the contracts. Here, particularly after considering the photographs taken by Mr. Taffaro on the date of the accident, there are clear indications that violations, or deviations from the contract were occurring that Mr. Taffaro should have observed and reported. As previously noted, Mr. Taffaro testified that he saw no shoring or bracing on the outside of the vault; shoring and bracing during demolition was required by the contracts. Mr. Taffaro also claimed that he could not see inside the vault to know whether there was bracing on the inside. This assertion is questionable given the fact that at the time he took the photographs, one side wall was almost entirely demolished and the door to the vault was partially open.”

The court also pointed out that the Project Manual was not adhered by the contractor.

“While VRA is correct in asserting that Tuna was responsible for safety on the Project, Mr. Taffaro acknowledged in his deposition that if he were to see anything unsafe at the site, he would notify the contractor's superintendent. However, Mr. Taffaro spoke to no one with Tuna or with Mr. Bonilla's supervisor on the day of the accident.”

For all the reasons cited herein, the court found that the existence of genuine issues of material fact – that must be decided by the jury or trier of fact, and not by the court on the summary judgment motion.

Comments:  This decision puts more responsibility on the design professionals than we typically see under contracts like those on this project. Despite the contracts clearly putting all jobsite safety responsibility on the contractor, the court focused on testimony by the architect that “if we were to see anything unsafe at the site, he would notify the contractor’s superintendent.”  In view of the photographs showing the conditions and in view of the apparent violation by the contractor of the Project Manual protocols, the court concluded there was a question as to whether the professionals “failed to identify and report an unsafe condition.”

Generally, the design professional has no duty to affirmatively look for site safety issues with a contractor’s work and report its findings to the contractor’s superintendent.  The site visit responsibility in the current AIA documents, for example, don’t state that the purpose of the site visit is to enable the architect “to endeavor to guard the Owner against defects and deficiencies.”  It merely requires the architect to report defects it actually observes.  That is a more reasonable requirement in view of the limited role the architect has under its contract to perform such site visits on an occasional or periodic basis.  The problem for the architect and engineer in this case may have been that the court saw this as a site safety problem that was so obvious that it created such an “imminent danger” that the professionals needed to promptly address it.

 

About the author: Article written by J. Kent Holland, Jr., a construction lawyer located in Tysons Corner, Virginia, with a national practice (formerly with Wickwire Gavin, P.C. and now with ConstructionRisk Counsel, PLLC) representing design professionals, contractors and project owners.  He is founder and president of a consulting firm, ConstructionRisk, LLC, providing consulting services to owners, design professionals, contractors and attorneys on construction projects.  He is publisher of ConstructionRisk Report and may be reached at Kent@ConstructionRisk.com or by calling 703-623-1932.  This article is published in ConstructionRisk Report, Vol. 25, No. 7 (September 2023).

Copyright 2023, ConstructionRisk, LLC