Design firms are sometimes unclear as to their role regarding safety at a job site. Certainly design firms have responsibility for the safety of their employees, but what about the safety of contractors? In determining a design professional’s responsibility for a worker’s injury, the courts will consider the obligations established by contract and the ability of the design professional to identify and prevent bodily injury under the specific circumstances.
Based on case law, it can be expected that a design professional will be held liable for a worker injury if the following conditions exist:
- The risk of injury is foreseeable—meaning that it’s predictable from the facts of a specific situation;
- The design professional has some element of control based on the relationship with the contractor;
- The design professional observes and recognizes a dangerous condition, meaning that he/she has actual knowledge of the danger; and
- The design professional has a reasonable opportunity to prevent the injury.
We recommend that if you become aware of an unsafe condition you notify the project superintendent (or other person in control of the site). Whether you do so verbally and/or in writing depends on the degree of danger involved. If the danger is critical or recurring, could threaten the safety of adjacent areas, or indicates an inability of the contractor to meet contractual or legal requirements and contractual obligations, it should also be reported to the owner and perhaps to government officials. If the danger is imminent, prudence and professionalism requires immediate action. Always document your files and include the date and time, the perceived unsafe conditions observed, and the name of the person to whom you gave notice.
The good news is that the number of claims against design professionals from workers with bodily injuries has declined steadily since the 1960s. This is probably in response to state laws and the increased use of contractual language that places responsibility for job-site safety with the contractor and not the design professional. In the past decade, bodily injury claims from workers accounted for only one percent of all claims against design professionals in the Schinnerer and CNA program, and indemnity payments were only made in 18% of those claims.