Vol. 9 No. 7		July 1990

We thought the matter had been carefully laid to rest. The solution was simple enough. Eliminate the word "supervise" from the owner/prime consultant agreement, make it clear that safety on the jobsite is the sole responsibility of the general contractor, and gone would be the argument that architects and engineers somehow share a duty to keep construction workers free from harm.

The solution worked reasonably well for more than a decade. What had become a deluge of claims by the late 1970s has been reduced to a trickle. Adverse judgments have been few and far between. But barriers to recovery notwithstanding, an undaunted plaintiffs' bar has continued to press the argument that duties to injured workers are to be found in obligations to "monitor," "oversee," and "inspect." Fortunately, these efforts have been less than successful.

Yet, in spite of progress made and precedents set, jobsite safety seems to be something of a modern-day Hydra. The severing of a single head is no more a solution today than it was in mythological times. The battle against the specter of responsibility for construction safety requires constant vigilance and Herculean effort.

Disasters have a way focusing public attention. After the collapse of L'Ambiance Plaza in Connecticut killed 28 construction workers and injured 16 others, Senator Lowell Weiker introduced legislation in the 100th Congress to strengthen controls over construction practices. The legislation would have required owners to retain a registered engineer to oversee construction and ensure worker safety. The bill, mercifully, died when Congress adjourned in 1988. But the issue did not go away.

Senator Christopher Dodd and Representative Christopher Shays, both of Connecticut, introduced new legislation in the 101st Congress. The new bill eliminates the requirement for oversight by a registered engineer, but serious objections from others directly affected by it have temporarily forestalled formal hearings.

Construction safety, nevertheless, remains in the public consciousness, and Congress can be expected to continue its search for solutions. Well that it should, and in the disjointed and incremental fashion in which public policy is made in the United States, a workable and manageable compromise among competing interests is likely to result.

The Executive Branch, on the other hand, has a way of pushing forward with considerably less restraint. Sensitive to the emergence of public concern with construction safety and empowered by enabling legislation giving it great latitude in pursuing its mission, the Occupational Safety and Health Administration (OSHA) has apparently set out on a course of its own. It is one fraught with risk for the design professions. In two separate accidents resulting in injuries to construction workers, both of which occurred after the L'Ambiance Plaza disaster, OSHA issued penalty citations to consulting engineers. The actions seem to be based on an institutional perception that design firms somehow ought to bear more responsibility for safety than they historically have assumed.

The first case involved a structural engineer in the northeast who was cited and fined for failing to "...design, erect, support, brace, and maintain..." temporary framework for a concrete floor slab which collapsed into a lobby area during a pour. The collapse injured five workers.

OSHA officials chose to ignore the fact that the engineer had no contractual responsibility for temporary bracing. "Somewhere," commented the OSHA regional administrator, "they (consulting engineers) just have to get serious in the job they are doing." The fine has been appealed. What is chilling is the unprecedented proclamation by OSHA as to where responsibility ought to lie.

A second and far more substantial fine was subsequently imposed on the prime consultant for a sewer tunnel project in which three workers were killed in a gas explosion. In this case, OSHA took the position that the engineer was, in fact, the project manager on the job, not simply a prime design consultant. Thus, OSHA argued, the engineer had assumed construction and safety responsibilities which it failed to meet.

This fine is also being appealed. Whether OSHA has its facts straight or not, it is its readiness to point an accusatory finger at the engineer which gives cause for alarm. The fine, according to the acting director of OSHA's compliance division, reflects the agency's concern, "that everyone takes their share and is held accountable."

What does this all mean to you? Severing a head of the Hydra is no solution, but the forces of pluralism in a free society just may be. Keep a watchful eye on OSHA, and support your professional society in its efforts to redirect the attention of OSHA administrators to those truly in a position to act.

NSPE, ACEC, ASCE, and the AIA have formed a coalition to work with OSHA to clarify the role of architects and engineers in construction safety. All support legislative and administrative efforts to improve safety on the jobsite. All strongly oppose the imposition of unwarranted responsibility for the actions of others not under the supervision and control of the design professionals involved.

Stay the course in your efforts to negotiate agreements which accurately reflect the responsibilities you intend to assume. Make it clear that you are not responsible for the means and methods of construction, nor for safety on the jobsite, and that these responsibilities are intended to be and to remain solely those of the general contractor. Be particularly cautious with owner-drafted forms, for this is not a contractual issue of great concern to most owners and their attorneys. It is to you. You might also seek to avoid descriptors of your role in the field which (arguably) imply control over the performance of the contractor.

Finally, take care not to modify your contract by your actions. You can assume responsibilities you never intended if you gratuitously intercede where you have no obligation to do so. You can avoid this, but only if those who represent you in the field maintain their focus on the intended result and not the manner in which that result is accomplished.

You can ill afford to ignore obviously dangerous conditions on the site. But, unless OSHA prevails in its efforts to find duties where none currently exist, you have no responsibility to seek them out. Under most circumstances, your obligation to respond with reasonable prudence will be met if you bring clear safety violations to the attention of the supervisor on the job. Follow through in writing and in the field once you set this process in motion, and you will have done all you can reasonably be expected to do.