Powell Trachtman Logan Carrle & Lombardo

Design Professional's Practice Bulletin

Volume 5, Number 1 — May 2001

This Bulletin addresses recent developments affecting Design Professionals as well as business concerns as important as the specific professional and technical issues they face.

Editors: Richard J. Davies and Neil P. Clain

You Have Observed A Dangerous Situation On Site.
What Do You Do? The Pennsylvania Superior Court Has Provided Some New Clues.

By Richard J. Davies, Esquire

Introduction

What must an engineer or an architect do if he observes a dangerous condition posing a risk of injury or death to a construction worker? Posed as a legal question, the issue is: Doses he have a duty to do anything; that is, will he be held liable if he does nothing and that worker is injured or killed by that dangerous condition?

In Pennsylvania, the courts have consistently refused to impose a duty to act upon an architect or engineer who observes a dangerous construction condition “absent an undertaking by an architect (or engineer), by contract or conduct, of the responsibilities of the supervision of construction and the maintenance of safe conditions on a construction project...” Young v. Eastern Engineering and Elevator Company, Inc., 381 Pa. Super 428, 554 A2d 77, 79 (1989).

Pennsylvania’s position on the issue is a specific application of the general rule that no person is obligated to come to the aid of another. The simple example which has been given to illustrate this point has been that of the drowning man. A man standing on the beach notices someone drowning and does nothing to aid that individual. While, he may be morally compelled to try to rescue the victim, if that man standing on the beach does nothing, the law will not find him liable for the death of the drowning man.

However, there are exceptions to this general rule. For example, one party may agree, by contract, to protect another.

In the construction context we often see an agreement by a contractor to protect his laborers in the contractor’s agreement with the owner. Typically, in those agreements the contractor expressly agrees to be responsible for the safety programs and precautions to be implemented as required by the means and methods he chooses to perform the work, so as to prevent harm to the relevant laborers.

In those cases, the design professional’s agreement usually expressly excludes such a responsibility from the professional’s scope of services and the professional usually can successfully defend construction site injury cases against it on that basis, unless he has voluntarily involved himself in the construction activities or the safety procedures applied to them. This is so in Pennsylvania, even when the design professional observes a dangerous construction condition posing risk of harm to a laborer and does nothing.

However, courts in other states have exhibited the kind moral outrage generated by the image of one man watching another drown and have concluded that actual knowledge of a dangerous condition is enough to create a special relationship between a design professional and a construction worker thereby obligating the design professional to take some action to protect that worker. For example, in Kansas, the courts have held that:

As a professional, an architect cannot stand idly by with actual knowledge of unsafe safety practices on the job site and take no steps to advise or warn the owner or contractor.

Hanna v. Huer, Johns, Neel, Rivers & Webb, 233 Kan. 206, 662 P.2d 243 (1983).

Closer to home, the Supreme Court of New Jersey in Carvalho v. Toll Brothers and Developers held an engineer liable who had actual knowledge of dangerous conditions posed by an unshored trench when that trench collapsed killing a worker within it, although the engineer’s agreement expressly excluded any responsibility for construction means or methods or for safety. To us, it appeared that the Carvalho was largely based upon the engineer’s actual knowledge of the dangerous of the dangerous condition alone. That decision created significant interest among the design professional community, not only in New Jersey but in Pennsylvania. Those of us in Pennsylvania wondered if it was a harbinger of things to come and if Pennsylvania courts faced with a similar set of circumstances might alter their view and hold an engineer liable for that worker’s injury or death.

In the meantime, the New Jersey legislature decided to address the issue by enacting a statute expressly establishing conditions for the liability of professional engineers (but, surprisingly, not architects) for project safety-related personal injuries. That statute is the subject of our Design Professional’s Practice Bulletin for April 2000.

Herczeg

On January 11, 2001 the Superior Court of Pennsylvania issued its decision in a case which we believe presented the Pennsylvania courts with a case as similar to Carvalho as the court was likely to find. That case, Herczeg v. Hampton Township Municipal Authority and Bankson Engineers, Inc. 2001 WL 25769 (Pa. Super 2001), arose out of the death of a construction worker following the collapse of an unshored trench. The administratrix of the deceased worker’s estate brought suit against the township (which owned to water line extension project which required the trenching at issue) and Bankson Engineers (“Bankson”) which had been retained to prepare the plans and specifications for that project. In Herczeg, as in Carvalho, the engineer had specifically excepted from its contract any responsibility for construction means and methods and associated job site safety. However, like the engineer in Carvalho, Bankson had a representative on site on the morning of the accident and it was alleged that this person had actual knowledge of the unsafe trench condition and the safety hazard created by this condition (which hazard was realized that day). Plaintiff argued that this knowledge alone created a duty to act and relied upon Carvalho and the Kansas court decisions as proof of the point.

However, the Superior Court in Herczeg concluded that the Carvalho court did not base its decision upon the engineer’s knowledge alone, but upon additional facts which did not exist in this case and thereby found a basis to relieve Bankson of liability for the construction site injury.

Our reading of the Herczeg decision leads us to believe that it was not a lack of these additional facts which lead to a different decision, but a fundamental difference of opinion between Pennsylvania and New Jersey courts on the basic question of when someone must act to protect another. Whether or not our belief is correct may be determined when the Pennsylvania Supreme Court reviews the Superior Court’s decision which has been appealed.

For now, we must base our recommendations to clients upon those facts the Superior Court used to distinguish between liability and non-liability and we highlight them below.

The Distinguishing Facts

In uncovering these distinctive facts, the Superior Court in Herczeg, like the Supreme Court in New Jersey in Carvalho, started with the general proposition that actual knowledge of a potential injury to someone else (the “foreseeability” of harm) does not alone establish the existence of a duty to protect that person. Rather, the question of whether or not one has a duty to exercise reasonable care to avoid a risk of harm to another is “one of fairness and policy that implicates many factors.” Carvalho, 143 N.J. at 572, 675 A.2d at ___; Herczeg, 2001 W.L. 25769 at 4. The factors to be assessed in determining fairness include the relationship between the parties, the nature of the risk, the opportunity and ability of a person to exercise care, and the public interest in the solution proposed.

In assessing these factors, the Herczeg court focused on the following distinctive facts presented in Carvalho.

First, the engineer at Carvalho, unlike the engineer at Herczeg, was obligated under its agreement to provide daily observation of the work of construction. Apparently this daily observation responsibility was required by the fact that the trenching was being done in areas of existing underground improvements, particularly utilities, and as these underground improvements were encountered changes in construction methods would have to be made in the trenching which would impact the progress of the job. Additionally, the use of certain safety measures and precautions could negatively impact the rate of progress. One of the responsibilities of the engineering firm was to ensure that the work progressed as required. Thus, the Carvalho court found an “interrelationship between safety and progress” relevant to determining whether or not it was fair to impose a duty upon the engineer to address “work site safety conditions”. In Herczeg, the court emphasized that there was no such daily observation required by Bankson and thus there was a lack of interrelationship between its responsibilities and the safety measures employed at the job site.

Secondly, the engineer in Carvalho apparently had the authority to stop the work of the contractor at any time, whereas Bankson did not. That is, Bankson did not have the same opportunity and ability to exercise care as that possessed by the engineer in Carvalho.

Thirdly, the engineer in Carvalho had knowledge of prior trench collapses on that construction site due to unstable trench conditions, whereas Bankson did not. The Herczeg court thus determined that the only similarity between the two engineering firms was that both had actual knowledge of the dangerous condition which eventually caused the worker’s death, and concluded that actual knowledge of the dangerous condition alone was not enough to find that fairness and public policy required the engineer take steps to protect the worker from the trench collapse.

What Does All of This Mean?

Because the Herczeg court has not rendered it decision based on a purely philosophical difference of opinion, but rather upon a very specific evaluation of the facts, it is difficult to draw from the decision any rule to be applied generally when a design professional in Pennsylvania observes a dangerous condition which poses the risk of imminent injury or death to a worker. Rather, the court has given us some clues of how to avoid liability.

First, design professionals should avoid any undertaking in their agreements, and through their conduct on site, any right or obligation to exercise control of the means and methods of construction or of the safety programs used in connection with them. Additionally, they should not assume the authority to stop the work. Rather, the design professional’s agreement should clearly and expressly state that he or she shall have no responsibility for the contractor’s means and methods, or for safety precautions connected with them, and that authority to stop the work shall remain with the owner.

During construction, if the design professional observes an extremely hazardous and imminent condition (for example, a steel girder is being swung in the direction of an unobservant steel worker’s head) she or he should immediately warn the worker (shouting “watch out” seems appropriate). However, in cases in which the risk of injury is in the short term and the seriousness of the potential injury is great, the contractor’s supervisor should be immediately notified, verbally if necessary, and a written notification given to the owner as soon as possible, preferably by fax and then by letter. We have assisted our clients in drafting notices with language emphasizing that this is a one-time event, and that by providing this notice the design professional has not undertaken an obligation to supervise or determine construction means, activities, methods and report upon their safety.

This bulletin is intended for general information purposes only and does not constitute legal advice. The reader should consult with legal counsel to determine how laws, suggestions and illustrations apply to specific situations.