By Tara Hoke
The hypothetical case presented here is based on the facts reported in Carvalho v. Toll Brothers & Developers, 143 N.J. 565 (1996).
Situation
An engineering firm is retained to design plans for the construction of a sewer line in a large East Coast municipality. While a third-party contractor is retained to construct the facilities and install the sewer line, the contractor's agreement allocates broad supervisory authority to the engineering firm. The latter is granted the right to inspect the contractor's work, to reject any work that fails to comply with the design plans or specifications, and even to require the on-site employees and subcontractors to cease work at its direction.
Notwithstanding these controls, the contract includes an express disclaimer by the engineering firm of any responsibility for jobsite safety. The contract notes that the engineer "shall not have control over construction means, methods, techniques, or safety precautions" used by the contractor and states that "neither the engineer's order nor failure to order any action shall relieve the contractor from his obligation to secure the degree of safety required by the contract. The contractor alone shall be responsible for the safety, adequacy, and efficiency of his plant, equipment, and methods."
In keeping with the engineering firm's contract with the owners, a representative of the firm who is both an engineer and an ASCE member is assigned to observe the construction work on-site each day. While on-site, the representative sees members of the construction team working in an unshored trench 13 ft deep. While the contractor had previously used a trench box to shore up the sides and eliminate the risk of collapse, on this day the contractor elected to proceed without such a safety precaution. Using the trench box would have required the workers to cut and restore utility lines, which would have greatly slowed the work.
The engineer is aware, however, that the contractor's failure to implement excavation safety measures is a violation both of its contractual obligations and of standards promulgated by the Occupational Safety and Health Administration. Moreover, he is aware that unstable trench conditions had led to several prior collapses at the site, and he can see water pooling at the bottom of the trench and other signs of instability.
Despite his observation of the dangerous conditions, the engineer takes no action to stop the work or otherwise palliate the safety hazard. Later that same day, the unshored trench collapses, and a worker is fatally crushed.
Question
If this case had involved an ASCE member, would his or her failure to address the safety hazard posed by the unshored trench have violated ASCE's Code of Ethics?
Discussion
Responsibility for ensuring construction site safety is a subject that is routinely debated within both the profession and the legal arena. ASCE's Policy 350 ("Construction Site Safety") notes that safety "requires attention and commitment from all parties involved" and suggests an allocation of contractual responsibility among owners, design professionals, and contractors. In a similar vein, most standard construction agreements, for example, those drafted by the Engineers Joint Contract Documents Committee or the American Institute of Architects, provide language that expressly assigns responsibility for employee safety to one or more parties to the contract.
As a general rule, courts consistently decline to impose legal liability on a party for on-site safety unless that party, either by contract or by behavior, has assumed some responsibility for supervision of the construction activities. However, as the focus of this column is on ethics, not on legal obligations, it is important to recognize that, as is frequently the case, the precepts of professional ethics impose a higher standard of conduct on professionals than may exist under the law.
Canon 1 of ASCE's Code of Ethics informs us that engineers "shall hold paramount the safety, health and welfare of the public...in the performance of their professional duties," and category (a) in the guidelines to practice for this canon points out that "the lives, safety, health and welfare of the general public are dependent upon engineering judgments, decisions and practices incorporated into structures, machines, products, processes and devices." This ethical obligation is not limited to situations in which a duty is imposed by contract or by law. Rather, it is to inform an engineer's actions in every situation involving his or her professional judgment. As such, in a case in which an engineer had personal knowledge of dangerous site conditions and yet failed to take appropriate action, it is likely that ASCE would have found that the member had failed to fulfill his ethical obligations under canon 1.
In the actual case that serves as the basis of this scenario, the court noted that the engineer had sufficient authority to insist on adequate safety precautions and to halt work until those precautions had been taken. Moreover, it found that there was a direct connection between the engineer's obligation to oversee the work and the decision to remove precautions that were impeding the progress of that work. Because the engineer could foresee the dangers and had the authority to mitigate them, the court held that the firm had violated its duty of care and thus was legally liable for the worker's death.
While the legal and ethical obligations in this case are closely aligned, it is interesting to compare this with a case in which there was no clear legal duty. For example, how would the results change if the engineer had held no contractual obligation to oversee the work and had no authority to halt work or to require the contractor to implement safety precautions? Suppose the engineer had simply visited the site in connection with another matter and then happened to notice the dangerous trench.
As noted earlier, courts will not impose a duty where none already exists. Thus, our hypothetical engineer would be unlikely to face legal liability for failing to act. Indeed, it might be legally prudent for such an engineer to avoid becoming involved since any action on his or her part to address the problem by, for example, bringing it to the attention of a foreman or a supervisor, might be construed as "assuming" a duty of care. Viewed in this light, the engineer would thus have the legal burden of ensuring that the threat is resolved.
In such situations, an engineer must remember the language of canon 1, in particular, the obligation to "hold paramount" the safety of the public. Even when taking action might present a risk of legal liability, if an engineer believes that a serious danger exists, it is incumbent upon him or her to put the public's interest first. To borrow the words of the court in Carvalho, a professional cannot "stand idly by with actual knowledge of unsafe safety practices on the jobsite and take no steps to prevent injury to the workers at risk."
Tara Hoke is ASCE’s general counsel and a contributing editor to Civil Engineering.
© ASCE, ASCE News, March, 2016
