Case Background
The case of Carvalho v. Toll Brothers arose out of a grave accident at a construction site, where an employee enlisted by a subcontractor engaged in excavation of trenches was fatally injured when the unsteady walls of a deep trench in which he was assigned to work caved in and crushed him to death. An inspector hired by the project engineer to observe the work being performed at the site was aware of the poor working conditions at the site by virtue of the fact that several walls had collapsed prior to the accident (“Carvalho v. Toll Brothers” par. 12). The case of Herczeg v. Hampton Township Municipal Authority and Bankson Engineers is similar to the Carvalho case as it also arose out of a fatal accident that was precipitated by the collapse of an unshored trench (Davis par. 1; “Jobsite Safety” 2). The accident at the construction site killed one worker who had been assigned to work in the unshored trench.
Defense
The defense in the Carvalho v. Toll Brothers case argued that although the contractual agreement stated that the engineer was required to have an inspector at the construction site on a daily basis to assist in monitoring the progress of the work, the engineer was not under any contractual obligation to supervise or oversee the safety procedures of the construction (“Jobsite Safety” 2). The defense team in this case purposed to demonstrate that the contractual agreement between the engineer and the contractor expressively excluded the former from any responsibility for the safety of workers at the construction site as ensuring safety is not generally considered part of a consulting professional’s contractual duties (Schneier 299-301). The team aimed to show that the engineer was not liable for the death as the sole responsibility for all persons and property at a construction site rests with the contractor (Schneier 302). In requesting the subcontractor to cover for the costs of the accident, the defense also wanted to demonstrate that the engineer could not be held responsible for the acts or omissions of the subcontractor that had enlisted the services of the deceased construction worker.
The defense in Herczeg’s case argued that the engineering firm (Bankson) had no prior knowledge of unsafe conditions in the construction site and that the engineer was not bound by any duty regarding the allegations of having actual knowledge that the construction worker was working in an unstable and unsafe trench (Holland 1; Sweet and Schneier 248-250). The defense also asserted that the engineering firm was not liable for the worker’s death as none of its services were involved in the cause of the accident, not mentioning that the engineer had no authority to control the contractor’s work and had never assumed by contractual agreement or conduct any responsibility for safety at the construction site (“Knowledge of Unsafe” par. 3). Here, the defense team purposed to demonstrate that the contract between the engineer and the contractor specifically stated that the engineer “was not responsible for construction means and methods, or for job safety” (“Jobsite Safety” 2).
Key Differences
The first difference is that the engineering firm at Carvalho’s case was obligated under its agreement with the contractor to provide daily observation of the work of construction and to report the progress of the work, implying that there was an interrelationship between progress and safety arising from the observation that the utilization of certain safety measures could have negatively impacted the rate of work progress. This interrelationship was used by the jury to determine “whether or not it was fair to impose a duty upon the engineer to address worksite safety conditions” (Davies par. 16). In Herczeg’s case, however, the court found no association between the engineer’s responsibilities and the safety measures implemented at the construction site as the engineering firm was not in any way required by the contractor to oversee the daily operations at the construction site. The engineer at Carvalho’s case was found liable for the worker’s death due to substantial worksite presence and the noted interrelationship between work progress and safety; however, the engineer at Herczeg’s case was not found liable due to minimal worksite presence and subsequent lack of the interrelationship between work progress and safety.
The second difference arises from the fact that “the engineer in Carvalho apparently had the authority to stop the contractor at any time, whereas Bankson did not” (Davies par. 17). As such, the engineering firm in Carvalho’s case was found liable for the worker’s death as it had more opportunity and ability to exercise a duty of care but failed to do so. However, the engineering firm in Herczeg’s case was not found liable due to its limited opportunity and capability to exercise a duty of care. Finally, although the engineering firm in Carvalho’s case had knowledge of previous trench collapses on that worksite as a result of unstable trench conditions, the engineering firm in Herczeg’s case did not have any such knowledge as its representative had not witnessed any trench collapses at the construction site.
Conclusion
The different outcomes of the two construction cases discussed in this paper demonstrate that, although it is not the sole responsibility of engineers or architects to ensure or facilitate jobsite safety, they may be found liable for the death or injury of a worker if a competent court of law make a determination that they had the opportunity and capacity to alleviate the risk of harm but failed to properly excise reasonable care for the safety of workers at a construction site.
Works Cited
Carvalho v. Toll Brothers and Developers. 2015. Web.
Davis, Richard J. You have observed a Dangerous Situation on Site: What do you do? The Pennsylvania Superior Court has provided some New Clues, 2016. Web.
Holland, Kent. Engineer had no Duty to Warn General Contractor’s Employee of Danger, n.d. Web.
Jobsite Safety, Part 1: Liabilities Get Muddy 2008. Web.
Knowledge of Unsafe Jobsite Conditions does not Render A/Es Liable. 2001. Web.
Schneier, Marc M. Construction Accident Law: A Comprehensive Guide to Legal Liability and Insurance Claims. Chicago, IL: ABA Publishing, 1999. Print.
Sweet, Justin and Marc M. Schneier. Legal Aspects of Architecture, Engineering and the Construction Process. 9th ed. Stamford, CT: Cengage Learning, 2013. Print.