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Who is liable for a construction project’s on-site safety: the construction manager (CM), the various contractors, or the owner? Idaho’s general rule is that that party having control of the premises may be liable for failure to keep the premises in safe condition. Whether a CM is in “control” of a construction site is governed by the contractual relationship between the owner and the CM and the contracts with the contractors performing work on the project. Specific contractual language concerning the CM’s responsibilities for “safety” on a project may put a CM in control of a construction site and subject the CM to potential liability for any on-site injuries.

A CM acts as a “project constructor” when it contracts directly with both the owner and contractors on a project. Typically this type of contractual relationship is governed by either: (1) the AIA-A121/AGC 565 document for project with a guaranteed maximum price; or (2) the AIA-A131/AGC 566 document for a cost plus fee project with no guaranteed maximum price. Both documents define the CM as a “Contractor” general conditions.

The following A201, Article 10 provisions give an example of express contractual language that gives rise to CM control over a construction site.

  • a. 10.1.1 - The Contractor shall be responsible for initiating, maintaining and supervising all safety precautions and programs in connection with the performance of the Contract.
  • b. 10.2.1 - The Contractor shall take reasonable precautions for safety of, and shall provide reasonable protection to prevent . . . injury . . . to employees on the Work and other persons who may be affected thereby.
  • c. 10.2.6 - The Contractor shall designate a responsible member of the Contractor’s organization at the site whose duty shall be the prevention of accidents.

A CM who contracts with an owner as a project constructor and uses the AIA/AGC documents will probably be deemed to have control of the construction site and thus could be liable for any injuries that occur on the site until the project is turned over to the owner.

A CM acts as a “project advisor” when it contracts directly with the owner and the owner contracts directly with the contractors on a project. Generally this type of contractual relationship is governed by the AIA-B801document. The B801 does not define the CM as a “Contractor” and incorporates the AIA-A201/CMa as general conditions. The following B801, Article 2 contract provision gives an example of express contractual language that protects a CM from taking control of the construction site.

  • d. 2.3.12 - The Construction Manager shall review the safety programs developed by each of the Contractors for purposes of coordinating the safety programs with those of the other Contractors. The Construction Manager’s responsibilities for coordination of safety programs shall not extend to direct control over or charge of the acts or omissions of the Contractors, Subcontractors, agents or employees of the Contractors, or any other persons performing portions of the Work and not directly employed by the Construction Manager.

A CM who serves only as a project advisor under the AIA-B801 documents will likely be deemed to not be in control of the project site and thus not liable for on-site injuries. However, the CM may incur liability for construction site injuries if its role as an advisor is expanded to include direct control over site safety.

Recently, the Pennsylvania Supreme Court held that a CM was liable for injury to a general contractor’s (“GC”) employee even though the prime contract stated that the GC was solely responsible for safety on the project. The court looked beyond the prime contract and focused on the contract between the CM and owner to determine whether the CM had control of the construction site for safety purposes.

The Pennsylvania court distinguished a prior case in which an engineering firm with safety obligations on a project was not held liable for an on-site injury. The court drew a distinction between implementing a plan and monitoring the contractors’ safety plan. The CM was held liable for on-site safety because its contractual obligation included creating, implementing and monitoring a construction site safety plan. The engineering firm who was obligated only to monitor the contractors on the project to safety programs was not held liable for on-site injuries.

Although Idaho courts have not specifically addressed this issue, both the project owner and the CM should carefully review the contract language to ensure each party understands the scope of responsibility undertaken.

A CM may limit the scope of its on-site safety responsibilities by taking the passive role of monitoring the safety programs of the performing contractors. On the other hand, assuming an active role in the creation and implementation of a safety program would justify an increase in the fees charged to the owner because it could open the door to liability for the CM.

(Published in the Idaho Business Review, July 2007)

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