Engineering/Architecture firms’ exposure to liability for scaffold collapse. McKean v. Yates Engineering Corporation. Court of Appeals of Mississippi (2015),by Hugh Anderson

Summary: This case presents a host of issues, some of which will be listed in bulleted form at the end of the Comment below. The focus of the summary will be on the potential liability of the project architect and the contractor’s engineering consultant for injuries that occurred when a scaffold collapsed.

The hospital project was underway when the contractor, Yates Construction, determined that it needed engineering guidance on the construction of scaffolding and concrete formwork above the first floor. Yates Construction retained Yates Engineering for this purpose. Yates Engineering prepared a scaffolding design that was fundamentally flawed. It called for use of 24-foot long 4×4 posts, which were not commercially available. Without seeking clarification or redesign from the engineering consultant, Yates Construction proceeded to construct the scaffolding by stacking shorter 4×4 posts end to end, and splicing them together with strips of plywood. An expert later characterized this as “an invitation to catastrophic splicing failure” of the entire scaffolding. And catastrophically fail it did, resulting in injuries to four workers. (The contractor also used 1×4 bracing, rather than the design’s 2×4 bracing; this downgrade in materials may have contributed to the collapse.)

The four workers were employees of the contractor, and thus restricted to their worker’s compensation benefits and barred from any other claim against the contractor. They sought recovery of additional injury damages from Yates Engineering and from the project architect. After the trial court granted summary judgment in favor of the two design professional firms, the plaintiffs appealed.

Decision: The Court of Appeals of Mississippi affirmed the lower court decision. Based on the unrefuted evidence, the court concluded that Yates Construction had not followed the design prepared by Yates Engineering. Thus, the court reasoned, even if the Yates Engineering design was defective and in fact unbuildable, it was not the cause of the accident. The court emphasized the fact that Yates Construction never asked Yates Engineering to clarify the problem of the need to use shorter 4×4 posts, or gave Yates Engineering the opportunity to design a structurally sound splice or alternative. Nor did Yates Construction ask the engineering  consultant about the possible effects of using 1×4 rather than 2×4 structural bracing.

The appellate court also rejected the argument that Yates Engineering had a duty to inspect the construction. The court noted the lack of a contract provision requiring Yates Engineering to inspect, and found no evidence in the record that Yates Engineering by its conduct had taken on safety or site inspection duties.

The project architect had entered into an AIA Owner-Architect agreement that contained standard industry provisions indicating that the architect did not have responsibility for site safety or the contractor’s means and methods of construction. The court of appeals held that the scaffolding was a “means” of construction and therefore not the architect’s responsibility. The court noted that under the AIA provision giving the architect periodic site visit duties, it was clear that the duties pertained to what was being built under the Contract Documents—which did not include scaffolding.

Comment: The owner and contractor did not have a written contract, despite the fact that this appears to have been a substantial project. Perhaps more understandably, it appears that there was no written contract between Yates Construction and Yates Engineering. Written terms and conditions might have simplified the resolution of issues, as was the case for the claims against the architect, which was working under a standard form contract.

The conclusion that the contractor’s engineer is exonerated from liability because the contractor did not follow the defective design has merit, but the dissent in the case argued that the question of whether the collapse was a direct result of the consultant’s failure to deliver a viable scaffold design was a question that deserved to go to an ultimate fact-finder (jury).

Some other points from the case:

  • The claims of one of the plaintiffs were rejected because of his immigration status.
  • The architect successfully excluded affidavit testimony by an expert who opined that the architect had inspection duties regarding the scaffolding, because the expert was an engineer, not an
  • Yates Construction began work on the scaffolding before receiving the scaffolding
  • There were possible questions of fact as to whether Yates Engineering did in fact inspect the scaffolding during construction, including conflicting evidence from statements made to

The plaintiffs contended that it was negligence for the owner to not enter into a written contract with the contractor.