Construction Manager Liability: Part three

I explained in my last two posts how construction managers can be subject to liability when a construction contractor’s employee is injured. Ordinarily, the construction manager has no duty to provide a safe workplace for the employees of a construction contractor and, therefore, is generally not liable for injuries to those employees. However, a construction manager can assume a duty to those employees in one of two ways — either by contract or by actions — and end up with liability for injuries.

For that reason, some construction managers have been reluctant to have any involvement with safety programs. By drafting contracts carefully, a construction manager can be fairly certain of not assuming a duty contractually, but it is difficult to know exactly what actions a construction manager can or cannot take without incurring liability. The Plan-Tec and Hunt cases discussed in our last post create some certainty. Specifically, a construction manager may take on contractual commitments to perform certain actions without assuming a duty to the employees of construction contractors and, consequentially, without incurring liability it would not otherwise have.

However, the construction management must avoid contractually undertaking to be the “insurer of safety for everyone on the project.” Here are some examples of what a construction manager should include in the construction management contract:

(a) To “make certain its avoidance of liability” the court in Hunt said a construction manager can include a provision with language expressly disavowing responsibility for job-site safety (EX: “in no case shall…the Construction Manager…have either direct or indirect responsibility for matters relative to Project safety.”).

(b) In Plan-Tec, the court held that the construction manager had not assumed a duty because the construction management contract “unequivocally state[d] that the contractors were to have the responsibility for project safety and the safety of their employees.” This language demonstrates that the responsibility for project safety belonged to the construction contractors, not the construction manager.

(c) Hunt’s contract stated that the construction manager’s services were “rendered solely for the benefit of the [Project Owner] and not for the benefit of the Contractors, the Architect, or other parties performing Work or services with respect to the Project.” This confirmed that no one but the Project Owner, not even a subcontractor’s injured employee, could expect to “benefit” from Hunt’s contract with the Project Owner or claim the contract obligated Hunt to assure their safety.

(d) Hunt’s contract provided that Hunt was not “assuming the safety obligations and responsibilities of the individual Contractors,” and that Hunt was not to have “control over or charge of or be responsible for…safety precautions and programs in connection with the Work of each of the Contractors, since these are the Contractor’s responsibilities.” In addition, it said that the construction contractor was the “controlling employer responsible for its own safety programs and precautions,” and Hunt’s responsibility to review, monitor, and coordinate those programs did “not extend to direct control over or charge of the acts or omissions of the Contractors, Subcontractors, their agents or employees or any other persons performing portions of the Work and not directly employed by Hunt.” This proved that Hunt was not vicariously liable for a subcontractor’s negligence in executing its own safety precautions.

Given the above contract provisions which help construction managers to avoid contractually assuming responsibility for job-site safety, consider one related reminder about avoiding liability as a result of actions. Remember how construction managers can become liable when they voluntarily perform safety obligations beyond what they previously agreed to in the construction management contract? For this reason, one last contract provision which would benefit construction managers could require that, if the project owner demands that construction manager begin to perform additional safety obligations, such new obligations would first be incorporated into the original contract via an amendment. This would serve as a contractual way to manage the risk of that other means of incurring liability – the construction manager’s actions.

Now, here are some examples of what a construction manager seeking to avoid liability should not include in a construction management contract:

(a) Provisions by which the construction manager accepts the “duty to maintain safety on the project.”

(b) Provisions providing that the construction manager is responsible for the contractors’ compliance with state and federal regulations. A provision like that could show that the construction manager was undertaking legal oversight of the subcontractors. As recounted in point (d) above, construction managers can safely contract to review, monitor, and coordinate safety programs and precautions, but not to be responsible for those programs as the “controlling employer.” The important inquiry is whether the construction manager has agreed to ensure contractors’ compliance with the law or whether the construction manager has only agreed to monitor contractors’ compliance for the project owner.

(c) Language such as: the construction manager “shall take reasonable precautions for safety of…employees on the Work.”

(d) Language such as: The construction manager “shall take all necessary precautions for the safety of employees on the work.”

(e) Language such as: The construction manager “shall take all necessary precautions for the safety of all employees on the project.”

Ultimately, the Indiana Supreme Court held that even though Hunt had agreed to some safety-related responsibilities in the original contract, those responsibilities didn’t invoke “vicarious liability.” In doing so, the court chose to further the policy of providing “a way of promoting safety without exposing contract managers to suits like this one,” rather than encourage construction managers to avoid taking on any responsibility for promoting job-site safety for fear of incurring liability.

While Plan-Tec and Hunt are highly instructive and offer great insight into how a court handles cases of subcontractors’ employees against construction managers, they cannot take into account all the variables that arise in these situations. Contracts are made to provide certainty. In the case of construction management contracts, part of that certainty is construction managers’ peace of mind knowing that they can focus on doing what they agreed with the project owner to do, without facing liability from left-field.

The above considerations along with the last two posts should afford a better understanding of how construction managers can contract in their best interest. To truly achieve the legal security and business advantages of a sound contract, experienced advice is crucial. We can provide this asset. Consider contacting our office and we can set up an initial consultation to discuss how we can serve you in your endeavors.

Michael Smith, Attorney at Law John Burkhardt, Legal Assistant

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