Construction Injuries or Death What are the Engineer s Responsibilities? Chris Unzicker University of Evansville Introduction Civil Engineering is a profession encompassing multiple responsibilities and ethical obligations, chief among them is a commitment to design structures that are safe, ensuring the protection of human life. The range of responsibilities civil engineers must bear is often questioned, however. The safety and serviceability of the end product is usually viewed as the design engineer s responsibility while the responsibility for safety during the construction phase is typically affixed to the contractor. This line of reasoning assigns ultimate liability to the contractor during construction of the engineer s design. But civil engineers have an ethical and, in the view of some courts, a legal obligation to help prevent construction accidents. Prudence dictates that only when both the engineer and the contractor collectively abide by their codes of ethics and implement reliable safety policies can injuries and fatalities be prevented during construction. According to the ASCE Code of Ethics (2014) Engineers shall hold paramount the safety, health and welfare of the public Engineers shall recognize that the lives, safety, health and welfare of the general public are dependent upon engineering judgments, decisions and practices incorporated into structures, machines, products, processes and devices. Civil engineers are held to these ethical standards; therefore it is their professional obligation to recognize safety concerns connected with the construction of their design. Understanding the risks associated with construction of the built environment is fundamental in hold[ing] paramount the safety health and welfare of the public (2014). This paper will seek to identify
how engineers can perform their duties, fulfill their ethical obligation to protect public safety, and limit their liability for accidents that may occur during construction of their design. Responsibility for Construction Safety The construction industry is notorious for the amount of workplace injuries and fatalities that occur within the trade. According to the United States Department of Labor and Occupational Safety and Health Administration (OSHA) statistics of 3929 worker fatalities in private industry in calendar year 2013, 796 or 20.3% were in construction that is, one in five worker deaths last year were in construction (Bureau, 2014). The prevalence of safety problems within the industry has garnered attention from the general public, and over the past decade numerous court decisions and academic studies have sought to identify the liable parties in construction failures and accidents. Many times these verdicts contradict themselves and produce ambiguous interpretations of responsibility Over the years the roles and responsibilities of project participants have changed. Historically, the architect/engineer functioned as a master builder, conceptualizing the building, committing his or her dreams to paper in the form of drawings, acting as an autocrat on the jobsite, stopping the work entirely when it contradicted his or her intentions, and rejecting work that he or she deemed to be unsuitable (McElroy, 2006). Litigation has altered the practice of engineers, however. It is normal practice today for engineers to step back during the construction process and observe actions rather than supervise. This limits engineers ability to stop construction if they see safety issues, but protects them against claims that may arise from injuries that occur on the jobsite.
The reluctance of engineers to be directly involved in construction activities is largely in response to unfavorable court decisions. In Coyne v. Robert H. Anderson & Associates, Inc. the defendant engineer was found guilty of wrong-doing despite the court acknowledg[ing] that the engineer s contract excluded safety responsibilities and that the engineer did not really control the work, had no right to stop the work, and was not in a position to take any meaningful steps to improve safety conditions (Gambatese, 1998). This is troubling because it implies that engineers under normal circumstances and specific contractual obligations to the contrary, may be deemed responsible for safety during construction of their design. Other cases, such as Clyde E. Williams & Associates, Inc. v. Boatman and Phillips v. United Engineers & Constructors, Inc., also assigned responsibility for worker safety to the designer. These courts found the defendant engineers liable because at some point during construction, they exceeded their normal scope of duty and directed construction work to some extent. By doing this, the engineer assumed partial responsibility for the construction efforts and therefore the safety of the workers in relation to that portion of work which they supervised (1998). Due to unfavorable judicial rulings, it is understandable why engineers have become increasingly wary of their role in the construction process. Although the ASCE Code of Ethics (2014) states, engineers shall hold paramount the safety, health and welfare of the public, distinguishing the designer s role in safety versus that of the contractor has become obscured, forcing engineers to protect themselves against liability issues through explicit contractual obligations or removing themselves from the process completely. This has led to an increasing us versus them mentality between engineers and contractors on construction projects. Which leads to the question, how can engineers uphold their obligations to protect the safety and well-
being of the public without interjecting themselves into situations where they may be held liable for accidents in the workplace? The answer lies in designing for safety. Prevention Through Design According to the National Institute for Occupational Safety and Health (NIOSH) (2014) One of the best ways to prevent and control occupational injuries, illnesses, and fatalities is to "design out" or minimize hazards and risks. NIOSH is leading a national initiative which they call Prevention through Design (PtD). This program addresses the safety issues that result from construction and attempts to prevent or reduce them by anticipating hazards that may occur as a result of the design (2014). This forces designers to steer away from the I design it, they build it mindset, and allows them to explicitly consider construction safety in the design of a project and make decisions based on the inherent safety risk of the construction workers. According to research by Michael Behm (2005), 42% of 224 construction related fatalities in the United States from 1990-2003 were related to preventable issues regarding the construction safety concept; additionally 22% of 226 injuries that occurred from 2000-2002 during construction in Oregon, Washington, and California were related to avoidable safety issues. Given that the construction industry already accounts for 20 % percent of injuries and fatalities among private industries, this demonstrates a substantial opportunity for engineers to have an impact on construction safety. Nevertheless, potential barriers threaten to slow the PtD movement. Designers fear that implementing PtD could create an obligation for engineers to be directly involved in construction and possibly make them the focus of undeserved liability for worker safety (Toole, 2014). This relates back to the rationale used by architects and engineers to
remove themselves from the construction process; if designers start incorporating safety into their design, it would appear that they would assume more responsibility for safety during construction. But this is not true. By enacting PtD, engineers are taking a proactive role in construction safety before construction begins rather than a reactive role during construction. Additionally, this does not mean the engineer is endorsing future legislation mandating engineers and architects design for construction safety or recommending that engineers be held partially responsible for construction accidents. PtD simply demonstrates the engineer s willingness to identify hazards that may occur during construction and attempt to eliminate or minimize the risks associated with these hazards (2014). Other considerations that are obstacles to employing PtD include the increase in direct and overhead costs engineers must assume, and the engineer s lack of safety expertise. This is essentially what transpired when the energy industry was required to comply with strict enforcement of environmental laws. Large energy companies were forced to implement green technologies without previous knowledge of the practice, and many suffered financially to make these changes. However, as implementing new environmental controls became more collective, tax breaks were implemented, green technologies became less expensive, and the industry benefitted from the program. PtD could provide beneficial incentives to the construction industry in the long run, just as environmental controls provided them to the energy industry. Among the advantages of employing PtD; fewer injuries/fatalities, increased productivity, fewer delays due to accidents, and collaboration between the contractor and designer (Toole, 2014). Furthermore, the decreased number of accidents could improve the reputation of an industry that is synonymous with dangerous working conditions.
Conclusion It is impossible to eliminate all risks that are associated with construction, but there is a very important role for engineers to play in reducing construction hazards. The United Kingdom s Consultants for Health and Safety (2011) provide a description of this role: Designers are in a unique position to reduce the risks that arise during construction work, and have a key role to play. Designs develop from initial concepts through to a detailed specification, often involving different teams and people at various stages. At each stage, designers from all disciplines can make a significant contribution by identifying and eliminating hazards, and reducing likely risks from hazards where elimination is not possible. Engineers, architects, and contractors cannot continue to adopt an us versus them mentality to limit liability for construction safety. Court decisions have established precedents that engineers can be held responsible for construction accidents and fatalities. Prevention through Design has the ability to address many of the problems associated with construction safety. Contractors and engineers are brought together to interact and collectively develop safe construction solutions. By incorporating safety into the design of the structure, engineers take a proactive approach to construction safety. Most importantly, prevention through design allows engineers to meet the ethical expectations of their profession as outlined in the ASCE Code of Ethics and provide safely constructed, reliable structures for the public.
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