Explaining Negligence in the Construction Industry (Guest post)

Today, a guest post by Anne Roberts.  Anne Roberts is a freelance writer. She writes blog posts, how-to articles, SEO copies, and many other types of content for several websites. Anne is currently a web content writer for personal injury attorneys.  (But we like her anyway!!)

Explaining Negligence in the Construction Industry

The construction world can be regarded as one of the most dangerous industries to work in. Because of the inherent hazards that come with working on a construction or repair project, both construction professionals and laborers uphold certain standards to ensure a safe working environment.

Contractors, surveyors, engineers, project managers to employers–all have a duty of care to observe. They make sure that assessments of risks involved in any facet of construction are made. Laborers, on the other hand, benefit from the assessments by exercising preventive measures.

Still, accidents happen.

Acrobatic_Construction_Workers

Some of the most common accidents that occur in construction sites involve six-feet-or-more falls from ladders or stairs. Other accidents are caused by the failure to implement safety precautions, such as improper building of scaffolding, use of dangerous tools and unsafe machinery, and other hazardous issues.  Without proper implementation of safety precautions, working on an elevated surface may result to debilitating injuries and even death.

According to the Bureau of Labor Statistics (BLS), it has been estimated that fatal accidents involving construction workers accounted for 15 percent of all job-related deaths in the U.S.  Such injuries or deaths may not have happened if a certain construction or repair project employed safety rules or standards of care. Such occurrence is categorized as construction negligence.

Determining Liability 

When a serious accident happens, usually all parties involved are brought into the litigation, as cross-allegations of construction safety issues, construction defects, and construction administration/observation/inspection issues.  In North Carolina, an employee cannot sue his employer for a workplace accident (but instead seek a workers’ compensation recovery).  The employee can, however, bring a negligence action against any/all (other) responsible third parties.  [Editor's Note: The parties may have rights to recover against each other if one is actively negligent and one is only passively negligent.  Otherwise, joint & several liability applies.]

To establish negligence, the injured party must prove the following four factors:

  1. The construction professionals involved have a duty of care;
  2. They breached or violated that duty of care;
  3. The breach of duty of care resulted to an injury; and
  4. The injury was the result of the construction professionals’ negligence.

[Editor's Note:  The injured party also must not have been contributorily negligent.]

Other than in a construction or repair project site, construction negligence also happens on highway construction and post-construction efforts. Unsafe conditions during roadwork can be considered negligence, especially if workers, as well as motorists, consequently sustained certain injuries.

Even a complete building can be a source of negligence, in which the contractor or subcontractor failed to adhere to building codes. Construction defects, such as low structural integrity of the building, mechanical and electrical failure, and low-quality finishes, may lead to injuries and deaths.

Melissa again:  Thanks Anne for your post!       Readers:  Watch this space– I’m planning on posting an infographic tomorrow that will show construction accidents & related statistics.  Stay tuned.  In the meantime, please leave any questions or thoughts in the comment section, below.

 Photo of workers on bamboo scaffolding (c) Terrance TS Tam.

 

 

 

Top 3 Take-Away Lessons for Engineers from the Sewage case (law note)

takeaway signAs we discussed yesterday, CH2M was held liable in negligence for the accidental death and other injuries sustained by workers at the Spokane wastewater treatment facility.  Today, a few take-away lessons for design professionals, regardless of where you work:

  1. Never assume that you cannot be sued.  The engineers at CH2M thought they had a slam-dunk case, because there was actual language giving them immunity in the law.  However, even then that immunity language did not stop the lawsuit and liability.  You can always be sued, even with the best language in the law or your contract.
  2. Even limited work can give you significant liability.  One of CH2M’s arguments was related to the fact that they were providing limited work on an “on call” service contract.  As the Court noted, just because you have not actually put pencil to paper (or made the CAD drawings), doesn’t mean that you are not “designing” in the eyes of a court of law.
  3. You must assume the negligence of others.  Okay, the case doesn’t specifically say this, but it does note that CH2M could not escape liability because the City had made modifications to the plant over the years.  The Court held that “a reasonably prudent engineer in the position of CH2M could reasonably have anticipated” that the plant might have been modified over the years, and that a prudent engineer would have conducted an engineering analysis to make that determination.

Comments, thoughts, or questions?  Drop me a line!  I want to hear from you.

Photo:  (c) Debbi Long via CC.

Is an Engineer ever immune from lawsuit? (Law note)

Spokane city towerCan an Engineering firm be held liable in negligence despite provisions in a state law which allegedly gives design professionals immunity?  That was the issue confronted recently by the Supreme Court in the state of Washington in a case entitled Larry Michaels vs. CH2M Hill.

The Washington court analyzed its state Industrial Insurance Act, which is similar to North Carolina’s Workers’ Compensation Act.  These acts are often described as “grand compromises” between workers and their employers.  Injured workers are given a fast, no-fault compensation system for injuries in the workplace. Employers, in turn, are given immunity from civil suits.  The workers get speed and certainty, while the employers are required to pay less than they would be in a lawsuit.

Washington state’s Act, unlike North Carolina’s Act, provides some immunity for design professionals performing design services, and the court had to wrestle with the applicability in a particularly gruesome case involving a catastrophic failure at the Spokane wastewater treatment plant.

One man was killed and another two other seriously injured in May 2004 when a digester dome (a huge, sports stadium-like contraption) collapsed at the wastewater treatment plant. The collapse caused Mr. Cmos to fall into heated sewage sludge, where he drowned. The lower court judge described the incident as arguably one of the most disgusting and terrible deaths imaginable. Mr. Evans was thrown from the dome and drenched with the sewage, while Mr. Michaels was knocked down by a cascade of sludge. The survivors, and the family of Cmos, sued CH2M for negligence.

CH2M was an engineering firm hired by Spokane as a consultant on a 10-year capital improvement project to upgrade the plant. One of the tasks the engineering firm oversaw was replacement and re-engineering of several transfer tubes between various digester domes at the plan. Ultimately a buildup of sewage occurred, shattering the dome on digester #3 and fatally injuring Cmos.

A series of unfortunate events took place on that day in early May of 2004 that all conspired to lead to the sewage buildup. After failed attempts to transfer the sludge to another digester, foam began leaking out of a pressure relief valve at the top of dome #3. The effluent ran down the outside of the dome and a concerned plant superintendent worried that the discharge might enter the Spoken River. The supervisor gathered Cmos, Evans and Michaels and asked if the three could assist him in diverting the sludge. Cmos and Evans climbed the dome with a fire hose to siphon foam while the superintendent and Michaels attached the other end of the house to a drain.

The dome continued filling with sludge until it finally cracked and collapsed. Cmos, alive and conscious, dropped into 100 degree sewage sludge and died in excruciating physical pain, darkness and utter helplessness. Evans and Michaels suffered varying severe injuries including broken limbs and lung damage from aspirating the sewage.

The city hired an engineering firm to investigate the disaster. The firm concluded there were three main causes: 1) a blocked overflow pipe; 2) a malfunctioning monitoring system inside the digester; and 3) a failed attempted to transfer sludge out of the digester.

Tomorrow, we’ll discuss the Court’s analysis and ruling concerning whether or not CH2M had immunity from being sued, and Friday we’ll discuss a few take-away lessons from the case.  Stay tuned……

Have you signed up for the blog to be delivered directly to your in-box? If not, do so now, so you’ll be sure to catch parts 2 and 3 of this article, and never miss any other posts here, either.

Photo: (c) spokanephotos.com via Creative Commons license.

Can a designer limit his liability to his fees for service?

Architects and engineers (and the owners/contractors with whom they contract) often wonder whether limiting liability language is enforceable.  The answer, as in much of construction law, is very much dependent on what state’s court will be interpreting the contract.  Some states allow such limiting language, and others do not.  Josh Glazov’s Construction Law Today blog recently tackled the enforceability of such provisions in the context of a recent Illinois case, in which the Illinois court found such limitations perfectly acceptable, so long as they (1) are not “unconscionable” and (2) do not violate public policy.

sign: proceed at own risk
 

North Carolina takes a very similar approach to such limitations of liability.  Here, so long as the limitation of liability is not also an agreement to be liable for the other party’s negligence (which is barred as against public policy), such a limitation of liability is enforceable.  A case discussing this issue from the engineering perspective is Blaylock Grading Co., LLP v. Smith et al, 189 N.C. App. 508, 658 S.E.2d 680 (2008).  In that case, a surveying engineer limited his liability, via contract, to $50,000.  The Court, citing an earlier state Supreme Court decision, ruled that the limitation was valid and enforceable:

People should be entitled to contract on their own terms without the indulgence of paternalism by courts in the alleviation of one side or another from the effects of a bad bargain.  Also, they should be permitted to enter into contracts that actually may be unreasonable or which may lead to hardship on one side.  It is only where it turns out that one side or the other is to be penalized by the enforcement of the terms of a contract so unconscionable that no decent, fairminded person would view the ensuing result without being possessed of a profound sense of injustice, that equity will deny the use of its good offices in the enforcement of such unconscionability.  Id. at 511, 658 S.E.2d at 682.

Is this rule absolute?  Clearly not, as the above quote indicates.  Unconscionable limitations will not be enforced.  Moreover, a third party, not subject to the contractual terms, is free to sue in negligence.  But as between the contracting parties, such a limitation on damages can be a powerful tool to minimize exposure to risk.

Questions about limitations on liability?  Comment below or drop me a line.  And be sure to sign up for email delivery of blog posts directly to your inbox.

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Photo:  “Proceed at own risk” by Dave Nicoll via Flickr/Creative Commons license 

Active vs. Passive Negligence (Law note)

whole hog sign“As long as I was in, and in for good, I might as well go the whole hog.”

–Huck Finn, The Adventures of Huckleberry Finn by Mark Twain

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If you work on a North Carolina construction project, you, too, are in “the whole hog” if you are negligent.  That is, if you are negligent at all, you are on the hook for the full lot.  As we’ve discussed, joint tort-feasors (that is, two negligent parties who are jointly & severally liable) are generally not entitled to indemnity from one another.

However, there are exceptions, and today we’re talking about one such exception– the passively negligent party.  

What is passive negligence?

Active negligence is an action which causes damage.  In contrast, passive negligence is negligence due to inaction, omission, or the failure to do something that you are legally obligated to do.   The actively negligent party is primary responsible for paying any damages, and the passively negligent party is only secondarily liable.

For example, if a subcontractor is actively negligent in constructing the framing for a building, and the general contractor failed to notice the defect, the subcontractor is actively negligent and the general contractor is passively negligent. 

Indemnity of the passively negligent party

Where the active negligence of one tort-feasor and the passive negligence of another combine to proximately cause injury to a third party, the passively negligent tort-feasor who is compelled to pay damages to the injured party is entitled to indemnity from the actively negligent tort-feasor.  This is called common-law indemnity, as opposed to contractual indemnity, which we discussed in an earlier blog post. 

In our example above, the subcontractor, as the actively negligent party, is the party ultimately responsible for the poor framing and the resulting damages.  If the general contractor is sued by the owner, he can in turn sue the subcontractor for the damages which were caused by the sub.

Questions about active versus passive negligence?  Drop me a line in the comments below.

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Photo “Whole Hog Heaven BBQ” by Bill.Roehl via Flickr/Creative Commons license.

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