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WILLIAM QUATMAN, from page 11
is questionable whether designers are ready to handle that new role. Some firms might engage a trained safety consul- tant to review their plans, or hire a “peer reviewer” for PtD, but most will be at risk of handling a new legal obligation without proper training. Will owners increase fees to com- pensate for this training and review? Not likely. The ACEC 2016 white paper observes that, “To the extent design professionals lack this knowledge, training, and experi- ence, they must acquire it for [PtD] to be successful. The potential cost of this training likely would be substantial, and would include a significant investment of employee time as well.” Training architects and engineers on PtD will take years, and require new college curriculum, seminars, workshops, and, perhaps, even certification in “safety by design.” We have to ask: Are design professionals really the best ones to take on this risk? A review by the contractor and, perhaps, trade subcontractors during design development could point out areas in which safety might be improved through design. But in this scenario, the design firm will be relying on the expertise of the construction community to advise on safety. By adopting their recommendations, who will bear the risk? Contractors and subcontractors who enjoy workers’ comp immunity might resist contract clauses that require them to indemnity and defend the design professional who relies on their input in PtD implementation, even if that is where the risk is best placed, on the team member most knowledgeable in site safety. SAFE HARBOR NEEDED. When the Americans With Disabilities Act was enacted in 1990, it provided broad principles for the elimination of discrimination against persons with dis- abilities. Congress charged the U.S. Attorney General to is- sue more specific standards for accessibility under Title III of the ADA. The Department of Justice adopted the ADA Accessibility Guidelines for Buildings and Facilities, which provided a sort of “safe harbor” for design professionals, by scripting out exactly what height and spacing, or slope, was best suited for accessibility. As one court stated: “The ADAAG Standards act as a safe harbor. A designer who ad- heres to the letter of those standards, as interpreted by the courts and DOJ, ordinarily will be in compliance with the ADA regulations, at least with regard to the particular de- sign elements covered by those standards.” If PtD becomes law, it seems logical and fair that the industry, and govern- ment, should provide similar guidance for design profes- sionals on just how to best address safety “through design.” CONCLUSION. We have to admit that construction is danger- ous work – the statistics prove that. Most construction companies take safety very seriously and work hard to train all employees on “safety first.” Can we do better, how- ever, if designs better accommodated the worker? Certain- ly. But this has to be well thought out, and the risks need to be allocated to those best trained and able to handle them. PtD has potential to reduce worker injuries but only if those most knowledgeable in construction means and methods are giving the input, and that is not necessarily the design professional. WILLIAM QUATMAN, FAIA, Esq., is general counsel and senior vice president at Burns & McDonnell Engineering Co. He can be reached at bquatman@burnsmcd.com.
This concept has become standard in most U.S. design and construction contracts and is accepted by the industry and its sureties and insurers as a fair allocation of risk. As the ASCE 2018 article points out, decades of court cases decided under these standard contracts have resulted in a fully developed body of case law and precedent upon which design firms have relied. Courts hold, generally, that: “Unless [an architect or engineer] has undertaken by conduct or contract to supervise a construction project, he is under no duty to notify or warn workers or employees of the contractor or subcontractor of hazardous conditions on the construction site.” At least ten states have enacted legislation that expands worker’s compensation immunity to the design professional, granting them immunity from injured worker claims, with two exceptions: 1) If responsibility for safety practices is specifically assumed by contract; or, 2) If the accident is due to the negligent preparation of design plans or specifications. Adoption of PtD could void this statutory protection if the design firm is sued for not preventing the accident “through design.” PTD IS GAINING ATTENTION. In the U.S., PtD has only been dis- cussed for about the past decade. In 2011, the American National Standards Institute and the American Society of Safety Engineers published a voluntary standard, ANSI/ ASSE Z590.3, titled “Prevention through Design: Guide- lines for Addressing Occupational Hazards and Risks in Design and Redesign Processes.” In 2016, the American Council of Engineering Companies’ Risk Management Committee published a white paper on “Design for Con- struction Safety.” However, in the U.K., this concept is more fully developed and is already written into the law. The U.K.’s Construction Design and Management Regula- tions of 2007 require designers to minimize the hazards associated with construction at as early a stage as possible. Two years before the U.K. initiative, the Australian gov- ernment took a leadership role in requiring safer designs for construction. The National Standard for Construction Work, NOHSC:1016, promotes as one of its priorities “eliminate hazards at the design stage.” WHAT IF PTD LEGISLATION IS PASSED IN THE U.S.? The ASCE article suggests that if design professionals become the targets of litigation under PtD, the insurance industry may react by either increasing premiums or excluding coverage for such services. Both would have a significant impact and decades of case precedent might be thrown out the window, super- seded by new legal obligations shifting site safety respon- sibilities to designers. One idea that has been floated is to promote PtD as a voluntary act protected under a “good Samaritan” concept. Many states have passed legislation giving immunity to those who volunteer, especially to de- sign professionals assisting in times of a natural disaster or emergency. Why not expand this concept to PtD to encour- age, not penalize, designers for considering the safety of workers? WHO BEST TO BEAR THE RISK? Few, if any, standard college pro- grams in architecture or engineering have courses in how to design for site safety. The state licensing examinations similarly do not test on this subject. So, while safety ad- vocates might think that shifting safety risk to the design professional is the answer to reducing worker injuries, it
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THE ZWEIG LETTER October 7, 2019, ISSUE 1315
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