Engineer’s duty to warn contractor of dangerous roof conditions. Waltman v. Engineering Plus, Inc. Supreme Court of Mississippi (2019), by Hugh Anderson

Summary: Construction foreman George Waltman was injured when he fell through the roof of a building in Meridian, Mississippi. Waltman was an employee of the general contractor, Norman Enterprises. Waltman claimed the project engineer was aware of the dangerous condition of the roof and failed to warn the workforce of the danger.

Lauderdale County had retained Engineering Plus to prepare bidding and construction documents for the replacement of the roofs of several county-owned buildings. The construction contract documents stated that the work would be done “under the direct supervision and to the complete satisfaction of the [County’s] …authorized representatives”—apparently referring to Engineering Plus. Site safety duties were assigned to the general contractor in a somewhat awkward clause referring to responsibility for “difficulties” and “risks of every description.”

Upon arrival at the Ulmer Building, Waltman began removing debris from the roof in preparation for repairs. Within minutes he stepped onto a deteriorated part of the roof and fell through.

Waltman sued Engineering Plus alleging a duty to warn him of the dangerous condition of the roof. Engineering Plus moved for summary judgment, contending that it did not have a duty to warn. The trial court agreed and granted summary judgment, dismissing the case.

Decision: On appeal, the state Supreme Court framed the issue as follows:
For an engineer to have an affirmative duty to warn of dangerous conditions, the engineer must have taken on, either by contract or conduct, the responsibility of maintaining the safety of the construction project.
The court held that Engineering Plus did not take on safety responsibilities by contract. The various contract clauses that touched on safety all reinforced “the proposition that Norman Enterprises was the only party responsible for safety at the project work site.” The court concluded that these provisions were more specific than the supervision clause, and would prevail in defining the engineering firm’s contractual safety role.
As to whether Engineering Plus had assumed a safety duty by conduct, the court indicated that there was no evidence in the record of Engineering Plus actually supervising or controlling the contractor’s work; of participating in activities at the work site; of assuming responsibility for safety practices; of issuing change orders; or of stopping the work. If such conduct had occurred, it could have been a basis for a conclusion that the engineering firm had assumed safety duties by conduct.

The Supreme Court of Mississippi affirmed the dismissal of Waltman’s claim against Engineering Plus.

Comment: According to the construction contract, the construction was to be performed under “the direct supervision” of Engineering Plus. Such apparent control over the contractor’s work often leads to trouble for engineers and architects. Here, Engineering Plus was successful in persuading the courts that the supervision clause was secondary to the safety clauses in the contract—clauses that were themselves non-standard and clumsy at allocating duties. The injured worker was apparently also not able to develop any evidence that Engineering Plus had actually supervised or controlled the work. The result might have been different with more development of the claim, or alternate arguments about the impact of the direct supervision clause.

Another unstated factor in the case might have been the nature of the construction project. The roof problems were not incidental to the project; correcting them was the direct purpose of the project. A warning about the poor condition of the roof might have been redundant or superfluous.

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