Building Your Case Against Architects And Engineers

Architects And Engineers Play A Crucial Role In Construction And Demolition Yet Are Often Protected From Liability. But There Are Ways To Hold Them Accountable For Negligent Actions That Endanger Workers And The Public.

ARCHITECTS AND ENGINEERS make decisions that can affect the safety of construction workers and people who will eventually inhabit and use the structures they design. While architects do not generally roam large-scale commercial construction projects looking for safety violations, they may take on the role of construction manager for smaller commercial or residential projects, exposing themselves to liability if they fail to identify and avoid knowable hazards. Engineers, routinely called on to sign and seal project plans, may be exposed to liability when the demolition and construction outlined in the written plans fail to include worker safety measures.

However, a host of defenses protects architects and engineers from liability in many
cases, and plaintiff attorneys must anticipate and address these defenses before they are
the subject of case-dispositive motions. You need to know the primary legal issues in cases
against architects and engineers, and discovery tips for successfully litigating these claims.

Establishing Duty and Breach

Written discovery requests. The foremost discovery goal is establishing the existence of a
duty that extends to an injured worker or member of the public. In your initial request, ask
for all documents that set forth the roles and responsibilities of the design professionals-
most often, contracts that detail general duties and obligations. On larger projects, owners
and design professionals frequently use the American Institute of Architects’ (AIA) standard
form contract. The contracts often have individualized scope of work exhibits that specify
design professionals’ duties and obligations. Contracts may incorporate other AIA contracts
or provisions by reference, so it is important to review all documents for duties and obligations,
as well as any dispute resolution procedures.

Because such contracts tend to insulate these professionals from liability,’ plaintiff attorneys
also must request the entire correspondence file. In general, an architect whose only
project involvement is to design and prepare plans for construction will not be liable if a
worker is injured.2 However, once a project begins, owners and site contractors frequently
ask architects and engineers to come on site, and these visits may be documented in meeting
sign-in sheets or a superintendent’s log. When licensed professionals are on site and see
hazards, they may be obligated to raise the attention of site management.3
In demolition projects, owners must establish a written demolition plan.4 Often, these are
written and signed by a professional engineer, who includes detailed information about which
structures will be demolished by hand and which ones by machine. Since hand demolition work most often occurs at a height above the ground, the engineer may specify the construction of elevated platforms. Engineers may be liable if they fail to specify all Occupational Safety and Health Administration (OSHA) required fall protection features for the elevated structures.

Whether the case involves construction or demolition, this list of discovery topics stays largely the same. Your initial discovery must request the background and qualifications of the architects or engineers as construction safety professionals, including:

  • knowledge of OSHA regulations
  • experience and certifications with construction equipment and machinery
  • frequency and nature of site visits, and whether they took any progress photos or notes
  • response when encountering unsafe practices or conditions on the job site
  • knowledge of the particular hazard at issue in your case and how to avoid or mitigate it
  • review of any “as-built drawings” and what steps they took in following up on issues arising from them.

These written requests should give you access to key job site records, help to frame the design professional’s role, and determine whether his or her conduct fell below the standard of care.

Depositions. Once you have the relevant documents, you are ready to begin the deposition process. When deposing architects and engineers, three issues are paramount: credentials, standard of care, and rules of the road.

Unlike a typical deposition of a construction foreman or superintendent-where you may look to expose the witness’s lack of OSHA safety training-it maybe more beneficial to encourage the design professional to puff up his or her credentials. There are two reasons for this: First, a jury may believe that if this well-qualified construction professional had been present at the job site, he or she would never have allowed the unsafe condition to continue. Second, when a
highly credentialed design professional points the finger at another defendant as being responsible for identifying and mitigating hazards, this opinion will be taken seriously by the jury or the insurance claims representative.

When seeking to establish the standard of care through architects or engineers,
some jurisdictions will allow the questioning attorney to ask them to state the applicable standard of care under the circumstances. When this direct approach is unacceptable, other options include asking:

  • what they were taught to do in those circumstances
  • what they considered their responsibility under the circumstances and why
  • what they have read in trade publications about how to address the hazard at issue in the case
  • how they have instructed young design professionals to handle that situation.

Additionally, establishing concrete rules of the road is a powerful weapon. My favorites include asking the following:

  • “Can we agree that an architect or engineer should never needlessly endanger the
    workers who construct his or her
    design?
  • worker safety is the most important
    thing on a job site?
  • AD safety requires identifying and eliminating hazards before they
    become accidents?
  • nobody should sit idly by and allow
    an unsafe condition or practice to
    continue?”

It also may be helpful to review any testimony the architect or engineer has given in other cases, either as a party or as an expert witness.

Statutes of Repose

Every practitioner must be mindful of the statute of repose that applies in the jurisdiction where the accident occurred. The statute’s purpose is to extinguish the prospect of liability and
“protect [those] in the construction industry from being hauled into court by reason of latent defects that did not become manifest until years after the completion of the construction.”‘

In Streeter v. SSOE Systems, the spouse of a worker killed by a falling exhaust stack sued the firms involved in the design, construction, and installation of the factory. After determining
that the statute of repose was triggered when the factory first became available for its intended use in 1995, the court held that because the plaintiff’s husband died in 2006, Maryland’s 10-year statute of repose for architects, engineers, and contractors barred the suit. Expert Testimony In general, negligence claims against architects and engineers “require expert
testimony as to the ordinary standard of care in the industry” and the manner in which the defendant violated the standard of care.8 In Glenn Construction Co., LLC v. Bell Aerospace Services, Inc., a general contractor responsible for

WHEN DEPOSING ARCHITECTS AND ENGINEERS, THREE ISSUES ARE PARAMOUNT:
CREDENTIALS, STANDARD OF CARE, AND RULES OF THE ROAD.

PROFESSIONAL NEGLIGENCE II ‘Building Your Case Against Architects and Engineers
building a new helicopter hangar sued the project engineer. The general contractor sought to recover costs incurred when the engineer underestimated the load of poured concrete the columns would need to support. The project engineer defended his calculations, explaining
that he took them from the design drawings of another metal building that
was substantially similar in size, shape, and materials.

The court held that expert testimony was required to support the contractor’s claim that the project engineer was negligent in underestimating the column loads. A structural engineering
expert’s testimony was needed to prove that the standard of care required the project engineer to verify that the projected loads would correspond with the load calculations taken from drawings of another building.”

Not all negligence claims against an engineer require expert testimony. For reinforcement bars could be seen to fit properly. A reasonable jury could find
that the revised foundation designs were impossible to do in the space provided.”‘”
The court held that no expert testimony was required to prove this claim.”

Certificates of merit. At least 14 states have adopted some version of a certificate of merit requirement. In those states, plaintiff attorneys must retain a professional in the same field
or discipline as the defendant to evaluate whether a legitimate, supportable claim exists against a design professional, rather than filing suit based on a broad allegation that the defendant engaged in some unspecified, actionable misconduct.

The specifics vary from state to state, but the requirement’s language typically tracks the Model Certificate of Merit published by the National Society of Professional
Engineers. Under the Model Certificate of Merit, a plaintiff attorney UNLIKE A TYPICAL DEPOSITION OF A CONSTRUCTION FOREMAN OR SUPERINTENDENT-WHERE YOU MAY LOOK TO EXPOSE THE WITNESS’S LACK OF OSHA SAFETY TRAINING-IT MAY BE MORE
BENEFICIAL TO ENCOURAGE THE DESIGN PROFESSIONAL TO PUFF UP HIS OR HER CREDENTIALS.

For example, Glenn Construction also contendedthat its reinforcing subcontractor was unable to fit the specified reinforcement rods into the space provided in the project engineer’s drawings. The drawings also did not show which direction to orient the hook on the dowels used to connect the reinforcement rods. The court noted that the “drawings provided to Glenn Construction were not done to scale such that the location of the must file an affidavit of an engineer that sets forth at least one “negligent act, error, or omission claimed to exist and the factual basis for each such claim.” The engineer must be licensed in the state and actively engaged in the practice of engineering. In addition to checking the certificate of merit requirements in your jurisdiction, if any, plaintiff attorneys should be aware of two potential exceptions from the requirements. First, when the design professional commits the negligent conduct during the performance of professional services, but the nature of
the conduct is within the realm of common knowledge and experience, no certificate of merit will be required. For example, in Merlini v. Gallitzin Water Authority, the Pennsylvania Superior
Court addressed a homeowner’s Claim that the defendant contractor, ender the direction of the defendant engineer, came on her property without permission and constructed a water line,
pairing her use of the property. The court held that the defendant’s actions were akin to a negligent trespass rather than a breach of a professional duty because they did not “raise questions if professional judgment beyond the realm of common knowledge and experience.”
Therefore, no certificate of merit was required. A second issue concerns the applicability
of a state certificate of merit requirement when the case is pending federal court. If a certificate of merit requirement imposes more stringent leading requirements than Federal Rules of Civil Procedure 8 and 9, the conflict with federal pleading sufficiency standards renders the certificate of merit requirements inapplicable.”

In workplace injury claims, the law generally limits the duties of a design professional to those specified in the contract with the owner.

David L. Kwass is a partner with Saltz, Mongeluzzi & Bendesky in Philadelphia.

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