The ways in which a construction manager (CM) defines and carries out services can have far-reaching consequences with respect to the CM’s potential liability. This is particularly true when it relates to jobsite safety.
When a worker is injured and there is a CM on the project, it is not unexpected that the CM will be named as a defendant in ensuing litigation. Typically, the courts will first look at the contract between the CM and the project owner to determine if the contract imposed a duty of care on the CM to the injured worker. A well-drafted contract should define the scope of the CM’s duty and to whom that duty is owed.
In a recent case out of Indiana, the court found that the CM’s contract did not impose a duty to the injured worker because the contract limited the CM’s safety responsibilities to reviewing and coordinating the contractors’ safety programs. The contract further disclaimed responsibility for the acts or omissions of the contractors and specified that the contractors would be “solely” responsible for safety precautions and programs.
Courts may also look at whether or not the actions of a CM create a duty of care. A CM may assume a duty of care by undertaking responsibilities beyond those found in the CM’s contract. Again, the Indiana case is informative. In that case, the court found that the CM’s actions did not fall outside the terms of the contract and that the affirmative and exculpatory language of the contract negated any duty owed by the CM to the injured worker.
It’s important to recognize that laws differ from one jurisdiction to another. This case may have had different results had it been decided somewhere other than Indiana. It’s essential to update contract language based on the laws and public policy of the applicable jurisdiction, and avoid assuming duties that exceed those allocated in the contract.
For examples of other claims involving construction managers, visit our collection of claims and benchmarking studies on the Schinnerer risk management website where you’ll find the claims study on construction management. Also of interest may be our Construction Manager’s Terms and Conditions Review Guide and the Risk Management Primer for the CM Professional, which can be found on our construction managers risk management page. Access to our risk management resources is limited to current policyholders and brokers only.