MEAD TECHNICAL PAPER:

Construction Safety and its Relation to Engineering Liability

Prepared for:

ASCE PNW Student Conference

Idaho State University

Prepared by:

James M. Desmond, S.M.ASCE

Civil Engineering Student

Oregon State University

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TABLE OF CONTENTS

INTRODUCTION ............................................................................................................................................. 2

CURRENT PRACTICE ...................................................................................................................................... 2

ETHICS AND THEIR IMPLICATIONS ................................................................................................................ 3

CASE STUDIES ................................................................................................................................................ 5

PREVENTION OF ACCIDENTS THROUGH DESIGN .......................................................................................... 7

CONCLUSION ................................................................................................................................................. 8

REFERENCES .................................................................................................................................................. 9

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INTRODUCTION

As civil engineers, we have the end goal of designing infrastructure that is functional and safe for

the end-user. But what about the constructability and safety of those responsible for constructing

infrastructure projects? Should the contractor remain liable for all construction-related

problems/accidents or must the engineer assume liability for accidents that are inherently related to

construction practices with his/her design?

This paper will examine this question in further detail by discussing current practice and coverages

for engineers and contractors, canons of the ASCE Code of Ethics, case studies examining construction

risks, and strategies for prevention of accidents through design. Finally, the report will analyze findings

and determine if practicing engineers have an added liability for the safety of workers on their projects.

CURRENT PRACTICE

In the United States, government contracts are awarded based on whoever places the lowest bid,

to fulfill government regulations for a public project or save money for a private project. This selection is

also related to the General Contracting method of construction (also known as Design-Bid-Build). This

method of managing construction contracts in the U.S. sets up a triangular agreement between the

owner, designer, and builder. Each of these parties holds different responsibilities and warranties to

guarantee in their work, which can put the designer and builder into an adversarial relationship.

The engineer warrants that the design provides the proper standard of care and follows current

standards of practice and design code provisions. Sometimes a safe structure may not fully perform as

desired by the owner, so the designer should be cautious in promising or implying a level of performance

that the building could achieve. However, structural engineering is moving towards performance-based

design and this issue will become more important in this particular discipline. Also, if a design is are found

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to be inadequate, the engineer may have professional liability insurance to cover breaches of the standard

of care (Hinze 2011).

The builder or contractor will warrant that his construction materials and methods will produce

the project outcome specified in the contract documents. If the contractor has constructability questions

that may change the design, the engineer must be contacted to approve the design change or shop

drawings provided by the contractor. The contractor is also responsible for the safety of the workplace

and the surrounding areas that could be immediately affected. This includes compliance with the

Occupational Safety and Health Administration (OSHA) standards and the mitigation of attractive

nuisances or accidents just outside the construction areas. For this reason, the contractor has numerous

lia ilities ith o espo di g i su a e o e ages: o t a to s isk, o ke s o pe satio ,

operations/premises liability, automobile insurance, protective liability (to protect for damages of

su o t a to , o pletio lia ility, a d uilde s isk. The e a e also othe o e ages for the contractor,

depending on the project (Hinze 2011). The question that arises from the beginning is if the contractor is

liable for workplace safety and has the means and methods to insure his property, workers, and any third

parties or their property, why should the engineer be liable for injuries to workers or bystanders during

construction?

Engineers take on quite a bit of liability by designing for the end-user, without ever physically

uildi g the st u tu e, so the t aditio al a s e is o . To take on liability for construction injuries would

seem foolish for designers who are removed from physical construction once the contractor is awarded

the contract. From a legal sense, engineers who think this are absolutely right. But as members of the

American Society of Civil Engineers, we must consider the ethical implications of our design (Hinze 2011).

ETHICS AND THEIR IMPLICATIONS

The ASCE Code of Ethics contains seven canons, which are listed below (ASCE 2006):

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1. Engineers shall hold paramount the safety, health and welfare of the public and shall strive to

comply with the principles of sustainable development in the performance of their professional

duties.

2. Engineers shall perform services only in areas of their competence.

3. Engineers shall issue public statements only in an objective and truthful manner.

4. Engineers shall act in professional matters for each employer or client as faithful agents or

trustees, and shall avoid conflicts of interest.

5. Engineers shall build their professional reputation on the merit of their services and shall not

compete unfairly with others.

6. Engineers shall act in such a manner as to uphold and enhance the honor, integrity, and dignity

of the engineering profession and shall act with zero tolerance for bribery, fraud, and corruption.

7. Engineers shall continue their professional development throughout their careers, and shall

provide opportunities for the professional development of those engineers under their

supervision.

The very first canon of the code of ethics mentions safety and sustainable development. The safety of

the public is especially important, and not limited to only the end-user. More importantly, sustainable

development should include safer materials, efficient infrastructure, and sustain the lives of those who

build and occupy said infrastructure. Even though this is one code of ethics that only applies to civil

engineers, similar ethical codes can be found among other design professionals and their corresponding

professional organizations.

One example of a design where multiple deaths occurred is the World Cup infrastructure being built

in Qatar for the 2022 World Cup. According to a Smithsonian Article written by Eveleth (2014), Mo e

tha 9 o ke s ha e al eady died uildi g Qata s Wo ld Cup i frastructure. The International Trade

U io Co fede atio says that if o ditio s do t i p o e, at least ig a ts ill die efo e ki k-off.

Migrant workers have been a major source of labor for this project, pulling largely from India and Nepal.

Eveleth (2014) uotes that Workers described forced labour in 50°C (122°F) heat, employers who retain

salaries for several months and passports making it impossible for them to leave and being denied free

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drinking water. The investigation found sickness is endemic among workers living in overcrowded and

insanitary conditions and hunger has been reported. Thirty Nepalese construction workers took refuge in

thei ou t y s e assy and subsequently left the country, after they claimed they received no pay.

Legally, the architect is not responsible for the working conditions instilled by the contractor or

government as the case may be. The architect for this project, Zaha Hadid, has ee uoted sayi g, I have

othi g to do ith the o ke s. I thi k that s a issue the government – if the e s a p o le – should pick

up. Hopefully, these thi gs ill e esol ed, Va essa 2014). Ethically, she may not be bound the ASCE

canons specifically, but architect critic, James S. Russell brings up a good point that, Architects do have a

moral imperative to collectively work with labor-rights groups and other construction-related professions

to end abuse of the powerless by the powerful, 2014).

The Qatar World Cup Venue is an extreme case of the lack of worker safety. Some familiar cases where

deaths in construction have occurred would include the Sochi Olympics (25 workers dead), the Golden

Gate Bridge (13 workers dead), and the Brazil World Cup (6 workers dead). All of these cases were very

large infrastructure projects that are comparable to the 2022 World Cup venue. (Eveleth 2014). Of course,

more specifics are required on how these people may have died. For the Golden Gate Bridge, deaths may

have occurred due to older, unsafe construction methods that are no longer used today. The Williams-

Steiger Act (OSHAct) of 1971 was helpful in creating safer workplace standards in the United States (Hinze

2011). And currently, case studies are being conducted to determine risks associated with certain

construction alternatives on a project-by-project basis.

CASE STUDIES

There is an abundance of legal cases and studies that have been conducted to examine the source

of construction defects. One case study that was done at Oregon State University involved the newly built

Lonnie Harris Black Cultural Center (LHBCC). The study was conducted by Gambatese and Nnaji (2015),

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who sought to examine the risks involved with two design elements and their constructability: the exterior

skin and below-grade piping.

The LHBCC exterior skin is a brick veneer curtain wall (the as-built design option). The alternative

design was a glass and aluminum curtain wall. Table 1 below summarizes the findings by providing a

cumulative risk factor comparison for each of the design choices and the alternatives (Gambatese & Nnaji

2015). The cumulative risk is determined by assigning a unit risk factor per activity (severity/work hour)

and multiplying it by worker hours on a typical crew size. These risk values were then summed to obtain

the cumulative risk factor.

Table 1: Summary of Risk Values for As-built and Alternative Design Elements in the LHBCC

It becomes clear that the alternative design poses less risk for the workers building the LHBCC.

However, does this difference provide enough reason for the designer to choose the glass and aluminum

curtain wall with the cast iron piping over the as-built options? The LHBCC is one building with a much

smaller scope and duration than the World Cup infrastructure in Qatar. Does the time difference mitigate

most construction-related issues on the LHBCC building? The risk is much lower on shorter projects than

lo ge p oje ts, a d o ke s do t spe d ea ly as u h ti e i the uildi g as the futu e o upa ts ill.

So perhaps the alternative LHBCC designs pose less of a risk to workers, but is it adequate for the future

occupants?

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PREVENTION OF ACCIDENTS THROUGH DESIGN

There are examples outside the U.S. where engineers are using different tactics to improve

construction safety through design improvements. Gambatese (2013) conducted another study related

to Prevention through Design (PtD) in the United Kingdom. The UK implemented regulations in 1994,

known as Construction Design and Management (CDM) regulations. Now, nearly twenty years later, the

study has been able to analyze the progress of these regulations and how the UK has adapted.

Targeted focus group interviews and an industry-wide survey were used. The industry participants

were comprised of architects, design engineers, facility owners/developers, constructors,

manufacturers/suppliers, and health and safety consultants. Common question topics in this study

centered around CDM Regulation effects, common PtD practice, effects of PtD on team member roles,

organization, and innovations from PtD. Ga atese e tio s that, fourteen focus group sessions were

conducted with a total of 110 participants, and 228 usable survey responses were received. Both efforts

provided data from a diverse segment of the UK construction industry representing all of the major

stakeholders in construction p oje ts.

Eventually, it was found that PtD implementation does not change or increase design cost and

du atio , ut, leads to i p o e e ts i o st u tability, workmanship/quality, and productivity, and

less e o k Ga atese . The la gest ha ges e e oti ed i the p oje t tea e e s. The e

was more collaboration, improved communication, and professionals were better-involved. By involving

the ight people at the ight ti e , desig a d o st u tio e a e safe a d o e effi ie t. A othe

positive aspect that the study shows is when regulations are instilled, change can come about rather

quickly. For the UK, it only took 20 years to greatly improve an industry that has historically claimed many

lives.

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CONCLUSION

Should the engineer be responsible in the US for construction safety? Ethically-speaking, they

should be responsible, but under the current systems of acquiring contracts in the US, the lack of

engineering coverage in comparison with contractor coverage, and the lack of regulations for prevention

through design, I would argue they cannot be responsible. As ASCE members, it should be our goal to

improve our profession to enable our ethics to be carried out and move away from Design-Bid-Build

approaches to Design-Build approaches. The UK has implemented CDM regulations successfully in 20

years, so the US already has a proven model to follow. More importantly, private international firms that

operate in the US and UK will already have experience with CDM regulations, something quite useful for

a transition in the US. Once PtD regulations are implemented, engineers will be required to collaborate

and design for construction safety, as well as future occupants. With these changes in laws and

regulations, we can expect to see major changes in the way design and construction are done.

Word Count: 1,994 words

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REFERENCES

ASCE. . Ethi s Ca o s. Code of Ethics, < http://www.asce.org/code_of_ethics/ > (March 24,

2015).

Eveleth, ‘. Mo e Tha 9 Wo ke s Ha e Al eady Died Buildi g Qata s Wo ld Cup Infrastructure. Smithsonian, < www.smithsonianmag.com > (March 22, 2015).

Hinze, J. (2011). Construction Contracts. McGraw Hill. New York, NY.

Gambatese, J. & Nnaji, C. . Case “tudy # : Lo ie Ha is Bla k Cultu al Ce te LHBCC . Construction SliDeRulE Case Studies, < www.constructionsliderule.org > (March 17, 2015).

Gambatese, J. . Fi al ‘epo t – Activity 2: Assess the Effects of PtD Regulations on Construction

Co pa ies i the UK. Prevention through Design (PtD) Project 1: Benchmarking Management

Practices related to PtD in the US and UK, < www.cdc.gov/niosh > (March 10, 2015).

Russell, J. Zaha Hadid Wins Defamation Battle, Loses Reputation War. < jamessrussell.net >

(March 22, 2015).

Quirk, V. (2014) ")aha Hadid o Wo ke Deaths i Qata : It s Not My Duty As a A hite t ." Archdaily,

< www.archdaily.com > (March 22, 2015).