Construction Manager’s Contract Defines its Duties for Project Safety

By: David E. Sweitzer, Esquire des@muslaw.com

In Farabaugh v. Pennsylvania Turnpike Commission and Trumbull Corporation, the Pennsylvania Supreme Court ruled that a construction manager may be held responsible for injuries to employees of subcontractors if the construction manager is negligent in performing its contract obligations to the owner regarding project safety.

An employee of the general contractor was killed on the jobsite when the dump truck he was driving left a temporary road constructed by the general contractor and plummeted down an embankment. The worker’s Estate filed suit against the owner (the Pennsylvania Turnpike Commission) and the construction manager (Trumbull) alleging that both were responsible for the incident. Plaintiff’s theory against Trumbull was that the construction manager has a social duty to perform its contractual obligations without injuring third parties on the site.

The Court of Common Pleas of Allegheny County dismissed the case against Trumbull at a preliminary stage, ruling that the construction manager owed no legal duty to workers on the site. The Supreme Court ruled that the trial court’s analysis was incorrect and held that the obligations contained in the construction manager’s contract with the owner triggered a duty to workers on the site to perform its safety obligations in a non-negligent manner. The Supreme Court remanded the case to the Court of Common Pleas for trial on whether the construction manager breached its duty and caused the incident.

The Courts Will Analyze the CM’s Contract on a Case-by-Case Basis

Parties are free to define their obligations for project safety in their contract. In Farabaugh, Trumbull was paid to assume an active role in assuring safety on the site. It agreed to develop, implement, maintain and monitor a comprehensive project safety/insurance program. It agreed to review and approve other contractors’ site safety plans, and to assess those contractors’ compliance with their respective plans. Additionally, Trumbull had the power to stop work if it noticed safety problems. All of these facts were cited by the Supreme Court to support the conclusion that the construction manager assumed the duty to perform its obligations in a non-negligent manner. This analysis is critical. If the construction manager does not assume an active role, but only a passive one, the construction manager will not assume a legal duty for project safety.

The Farabaugh decision is significant for construction managers. There is no rigid definition of the duty of construction managers. Courts will analyze the contractual obligations between the construction manager and the owner for a definition of those duties. The construction manager needs to be clear in its understanding of its obligations, and it must be equally clear in expressing those obligations in its contract with the owner. In its negotiations with the owner, the construction manager should certainly be cognizant of what the owner wants and then work with its insurance consultant to assure adequate coverage relative to those desires.

For more information on this case or general construction litigation issues, please contact David E. Sweitzer at des@muslaw.com or call 412-456-2843.