By Michael C. Loulakis and Lauren P. McLaughlin
One of the biggest risks faced by an engineering firm is a lawsuit involving the personal injury or death of a construction worker. As discussed in some of our previous columns, the claim against an engineering firm will typically be based on a negligence theory, i.e., the engineer failed to address known safety issues and breached its duty of care to the worker. An engineer will typically argue that it is not the party responsible for construction safety, but it will more often than not have to go to a full trial to succeed on that argument. The practical effect? Engineering firms and their insurance companies will pay something to settle a case and avoid having the litigation exposure.
This month’s column looks at this issue from a different lens. Can an engineering firm successfully argue that it should be dismissed from a case based on sovereign immunity? A recent decision from a Florida appellate court, HNTB Corp. v. Milstead, concluded that the engineer was entitled to a sovereign immunity defense.
The case
The case involved a project by the Florida Department of Transportation for the installation of smart electronic signage poles along the Interstate 10 corridor. The project’s general contractor had maintenance of traffic responsibilities, including the placement of traffic cones and traffic signage along the highway for road shoulder and lane closures in order to alert approaching traffic of the upcoming worksite. FDOT hired HNTB to serve as the project’s construction engineering inspector. Its services included observing and reporting to FDOT the general contractor’s compliance with the contract, including the MOT work.
The general contractor subcontracted the heavy pole lifting and installation work to Ellis Crane Works. Ellis Crane personnel, including Zachary Stinson, helped the general contractor with its MOT duties. The decision stated that it was apparently common practice for Ellis Crane personnel to perform MOT tasks (such as picking up cones) while sitting on the tailgate or bed of a pickup truck moved slowly up and down the interstate shoulder.
After the last pole had been installed, Stinson was helping the general contractor’s superintendent pick up the MOT signs and cones. Stinson was either sitting on the truck’s tailgate or was attempting to sit on the tailgate when the driver of the vehicle (the general contractor’s superintendent) drove away, unaware of Stinson’s location. The truck’s acceleration caused Stinson to fall off the truck. He hit his head on the pavement and later died of head trauma.
Stinson’s daughter sued HNTB, among others, on behalf of his estate. She asserted that HNTB was negligent and that it had willfully and wantonly breached its contractual duty to provide safe project conditions by (a) overlooking jobsite MOT violations and (b) failing to direct the general contractor to prohibit Ellis Crane workers from helping with MOT equipment placement and pickup, per court documents. There was some evidence that “HNTB engineering inspectors would instruct contractors to immediately fix MOT setups that were not in compliance with FDOT engineering specifications and standards,” according to the decision.
The decision also noted that there was some evidence that HNTB engineering inspectors “probably observed” workers riding in the backs of trucks, although there was no record of HNTB making a recommendation to the general contractor regarding the danger of its employees riding in the beds of pickup trucks while performing their tasks, per the decision.
HNTB moved for summary judgment, arguing that under Florida law it was entitled to sovereign immunity as an agent of FDOT. Stinson’s daughter argued that sovereign immunity did not apply when there was “wanton and willful” conduct. The trial court denied the motion, finding that there were genuine issues of material fact regarding whether HNTB acted in a manner exhibiting wanton and willful disregard of Stinson’s safety and whether HNTB was “acting within the scope of its employment and function.” HNTB appealed.
The ruling
The appellate court overturned the trial court’s decision and found that HNTB was entitled to a summary judgment in its favor. In reaching this decision, the appellate court first examined whether HNTB was entitled to raise the sovereign immunity argument. The court noted that all the parties agreed that: “HNTB is a state agency, contracted to oversee the engineering aspects of installation of optical cable and smart signs along the I-10 corridor.”
Consequently, the court found that under Florida law, HNTB, as a state agency, was “immune from suit unless it committed the acts outside the course and scope of employment,” or unless HNTB acted “in bad faith or with a malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property,” according to the decision.
The court cited Florida case precedent holding that the phrase “wanton and willful disregard of human rights (or) safety” is “conduct much more reprehensible and unacceptable than mere intentional conduct” and “conduct that is worse than gross negligence.” It noted that a willful failure denotes a “conscious purpose to disobey, a culpable omission, and not merely innocent neglect. A failure without any element of intention, design, or purpose, and resulting merely from innocent neglect, is not a ‘willful’ failure.”
The court then examined whether the allegations raised by Stinson’s daughter met the standards of willful or wanton disregard. The court characterized these allegations as HNTB having routinely: (a) allowed construction personnel to violate industry standards and Florida law; (b) failed to adequately supervise the general contractor’s MOT functions; and (c) failed to report violations of FDOT engineering standards.
The court concluded that these alleged acts or omissions may be characterized as negligence, but that they did not rise to the level of willful and wanton and were “remote from the circumstances that led to Stinson’s tragic accident.” Notably, the court also stated (with little discussion) that the trial court’s record did not support that the allegations made by Stinson’s daughter were actually true.
The analysis
These types of cases are always difficult emotionally, as it is hard not to feel sympathy for Stinson’s family. However, on public projects, sovereign immunity is an important concept to remember, and it severely limits the ability to seek a remedy against a state agency or its agents acting within the scope of their responsibilities. Consequently, while the general contractor and Ellis Crane might be in the line of fire for liability, Stinson’s daughter was not able to succeed against HNTB or FDOT.
Importantly, the outcome of this case would likely have been substantially different if HNTB had been performing construction engineering inspector services for a private-sector owner. Needless to say, sovereign immunity would not have been a defense. Consequently, a plaintiff like Stinson’s daughter would not have had to demonstrate that the engineering inspector’s conduct was willful or wanton, but only that it was negligent.
While the facts of the case certainly matter, if this case were actually tried, the negligence liability standard would put the engineering inspector squarely in the line of fire for financial exposure. The more likely scenario is that the inspector and its professional liability carrier would settle the case to avoid a jury verdict.
Michael C. Loulakis ([email protected]) is the president and CEO of Capital Project Strategies LLC in Reston, Virginia. Lauren P. McLaughlin ([email protected]) is a partner of Smith, Currie & Hancock LLP in Tysons, Virginia.
This article first appeared in the September/October 2024 issue of Civil Engineering.
