By Michael J. Maloney
There are two sure-fire ways to get tagged with liability for site safety:
- Assume site safety responsibility in your contract with the owner, or
- Assume site safety responsibility by your behavior on the jobsite.
Option 1 is pretty clear cut, and is easy enough to avoid. But you and your employees should be on your guard against Option 2. If your contract specifically excludes site safety responsibility (as it should), and the owner-contractor contract specifically includes site safety responsibility (as it should), then you must leave this duty to the contactor. If you were to stalk through the jobsite insisting that this worker wear a hard hat, that this worker wear safety glasses and that netting be installed, a general contractor could well claim in court that you, an educated and licensed design professional, had taken charge of the safety component of the project.
A recent case in Wyoming saw a project engineer sued for the safety violations that caused an injury to a contractor’s employee on a fiber-optic cable project. The court found that since the project engineer had never assumed safety responsibilities beyond its contractual duties, it was not responsible for those safety violations. The Court of Appeals upheld the decision of the lower court.
What about public safety? Good question. What are you to do if you see an unsafe condition, particularly if a worker is in imminent danger? Here are my suggestions:
- If situation is not an imminent threat to worker safety, consider writing a letter to the project owner (if the owner is your client) expressing your concerns and reiterating that site safety is not your responsibility and that by writing the letter you are not taking on any responsibility for it. I think it is important that this communication is in writing.
- If the situation is more urgent – – a worker standing in an unshored trench, for instance – – I think it is your duty to instruct the worker to get to safety immediately. The next step, though, is to fire off a letter to the project owner describing what happened, why you did what you did, and reiterating site safety is not your responsibility and that having taken this action does not mean that you are taking on any site safety responsibilities.