The Occupational Safety and Health Administration (OSHA) reported that 22 workers died in the first half of 2022 due to deadly hazards present in trenching and excavation work. In response, OSHA has launched an enhanced nationwide enforcement effort and additional oversight of construction sites to ensure that contractors properly implement federal workplace safety requirements for trenching and excavation work.
On a typical project, construction site safety is the exclusive responsibility of the contractor. Make sure that all of your professional services agreements clearly assign responsibility for construction site safety to the contractor. As long as you have not reviewed safety plans and accepted responsibility for the contractor’s safety programs, your firm should not be responsible for construction site injuries. Your presence on the project site, however, could lead to allegations that you have some responsibility for unsafe working conditions that contributed to the injury. Courts generally have refrained from holding design professionals responsible for construction site safety unless the following factors apply to the particular situation:
- The risk of injury is foreseeable, meaning that it is 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 situation or condition, meaning they have actual knowledge of the danger; and
- The design professional had a reasonable opportunity to prevent the injury.
Design firms should be aware of this enhanced enforcement activity and make sure that your staff visiting construction sites are aware of their responsibilities. Staff who are on construction sites should be aware that if they see a situation that they know to be dangerous or unsafe, they most likely have an affirmative duty to act in some way. The nature of their duty will depend on the particular circumstances. The presence of a dangerous or unsafe condition is insufficient to hold the design professional responsible. The court will look at whether the design professional has knowledge of the dangerous conditions as well as the actions the design professional took to avert or address the observed condition when deciding whether the design professional should share responsibility for construction site safety. Design professionals should be prepared to act in a manner appropriate to the situation if they observe and recognize an unsafe or dangerous condition.
What to do if you see an unsafe condition
At Victor, we suggest the following guidelines to address your site safety responsibilities.
- If you see a condition where danger is imminent, it makes sense to take immediate action to change the course of events that could lead to bodily injury or worse. After the danger has passed, document and communicate to both the contractor and owner the unsafe conditions and the actions taken on site at your earliest reasonable opportunity.
- If the danger you observe is critical or recurring, threatens the safety of adjacent areas, or indicates an inability of the contractor to meet contractual obligations or legal requirements, inform the construction superintendent and owner. Ultimately, the owner has the power to stop the work, which may be necessary if the contractor does not remedy the problem. Depending on the situation, you may also have an obligation to inform government officials about the dangerous or unsafe conditions you have observed.
- If you see a problem on the construction site, it is necessary to address the problem in a written report, which you should provide to the construction superintendent and owner.
As always, our risk management guidance has to be adapted to your particular jurisdiction and your obligations to protect public health, safety, and welfare. It is essential that you document appropriately any issues you observe that relate to construction site safety and take the necessary steps to communicate immediately your observations to the contractor and owner.
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