Page 322 - Forensic Structural Engineering Handbook

TEMPORARY STRUCTURES IN CONSTRUCTION 10.11

The Designer
The design professional is responsible for the accuracy and adequacy of her or his plans and
specifications. By distributing these documents for use, the design professional impliedly
warrants to both the owner and contractor that a cohesive structure will result, provided the
plans and specifications are followed. But the designer does not guarantee perfection, only
that he or she exercised ordinary care. When a contractor who properly follows the designer’s
documents experiences a problem, liability will ultimately rest with the architect or engi-
neer. The designer would be responsible for all additional costs of construction attributable
to faulty design: the cost of all resultant damage, and the cost of redesign. This includes lia-
bility to third parties for injuries, death, and property damage.
A design professional has no duty to supervise, inspect, or observe the performance of
the work she or he designed, absent a duty which the design professional has assumed by
contract, by statute, or by having filed plans with a local building department. Once some
duty has been assumed, however, state courts are in wide disagreement as to the extent of
responsibility and liability. Some courts have found that design professionals have a non-
delegable duty to regularly supervise the means and methods of construction. At the very
least, the architect or engineer will be responsible for making occasional visits to the site to
verify technical compliance with the contract documents.
Designers should be wary of so-called routine sign-offs of the contractor’s work. The
sign-off may include a certification by the designer that the contractor has complied with
the plans and specifications and with applicable codes. Such a certification could impose
on the designer liability equal to the contractor’s in the event of a failure.
An engineer of record (ER) should be particularly careful in requiring submission of
and in “approving” the contractor’s detailed plan for temporary construction.
Exculpatory language is often placed on the engineer’s “approval” stamps to the effect
that the engineer has assumed no responsibility by having reviewed the submission. In
the event the design was not adequate and there was injury to person or property, it is
likely that the engineer’s stamp would not be sufficient to exculpate him or her from lia-
bility to injured third parties. The engineer of record should, but often does not, have
adequate familiarity with the materials, hardware, and equipment, or the experience
with methods of installation of temporary structures. If the engineer of record does not
have the necessary expertise, or does not intend to carefully review each and every sub-
mission, the submission should not be required at all. “Don’t ask for it, if you don’t know
what to do with it.”

The Contractor

The ambit of the contractor’s responsibility is far-reaching. The contractor is responsible
for performing all required work in accordance with the contract documents, generally
accepted construction practices, and governing legislative enactments. In sum, no matter
what goes wrong, the contractor stands suspected, accused, delayed, and eventually is
likely to pay or at least share the resulting costs.
It is important to stress that it is not necessarily enough that the contractor has performed
to the best of her or his own ability. When assessing liability, the courts do not simply
accept at face value what the contractor did, but measure that against what an ordinary con-
tractor of similar experience would have done under similar circumstances. Consequently,
when determining whether a contractor exercised ordinary or reasonable care in doing the
work, the court will look at how that work compares to the degree of skill prevalent in the
industry at the time the work was performed.