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Spring 2015 // Journal of American Law 39 Design professionals performing services in the construction feld ofen fail to appreciate the breadth of their liability exposure until a lawsuit strikes seeking extensive damages for a construction worker's bodily injury or death. Whether the design professional's in- surance will cover the claim depends on both the policy and the facts of each case. Con- sider the engineer providing construction phase services on a project employing over a hundred contractor and subcontractor em- ployees, each of whom is at risk for a job site injury on any day. Despite professional con- tracting practices that assure that workers' compensation insurance covers each worker, the trend is for claimants to seek addition- al compensation outside of the exclusive remedy provided by workers' compensation through civil tort actions against all parties involved in the project. This article deals with the legislative enactments in several states that extend the tort immunity afforded to statutory employers under workers' compensation schemes to design professionals working on construction projects. While these statutes will not afford protection against claims of negligent design, they may provide design professionals facing negligence and prem- ises liability claims for an allegedly unsafe workplace an absolute defense. Te cases indicate that design profes- sionals may face multiple theories of liabil- ity for construction work site injuries. Chief among these are negligence and premises liability claims asserting that the design pro- fessional is responsible for unsafe working conditions that proximately caused the ac- cidental injury. Contracts governing design professional and contractor services may support a claimant's argument that the de- sign professional had the authority to over- see, supervise, control, or monitor work site conditions including safety practices, partic- ularly when coupled with the power to stop the work when violations were observed. So, the theory goes, had the design profession- al performed his or her contractual duties of observation and control, the unsafe con- dition or practice would have been cured, thereby preventing the worker's injury. As a defense, design professionals may point to A. Scott McDaniel is the managing member of Mc- Daniel Acord PLLC in Tulsa, Okla. He is a senior trial attorney focusing on the defense of design profes- sional, construction defect, environmental, toxic tort, and commercial claims. Mr. McDaniel handles complex and technical litigation, including class actions and mass torts in state and federal courts across the region. He is also a cer- tifed mediator handling mediations and settlement conferences as an adjunct settlement judge. Before commencing his legal career 20 years ago, Mr. McDaniel practiced civil/ construction engineering for 11 years. He is a regis- tered professional engineer (retired) in North Carolina and Oklahoma. Andrew M. Conway is an attorney employed by the John Zink Company in Tulsa, Okla. As an associ- ate formerly practicing at McDaniel Acord PLLC, he focused on the defense of construction defect, premis- es liability, product liability, environmental, toxic tort, and commercial claims. SUMMARY Providing construction phase services exposes design professionals to construction workers' claims for job site injuries arising from allegedly unsafe working conditions. Whether by contract or custom, design professionals ofen visit job sites to observe the quality and progress of the work. If the design professional also has the authority to stop the work, an argument exists that the design professional has the duty to observe and direct the owner or contractor to correct any unsafe work conditions. While contractual terms assigning responsibility for job site safety and the means and methods of the work to the contractor provide a defense, questions of fact precluding summary judgment and lengthy discov- ery make even a successful defense very costly. To address this broad personal injury exposure, several states discussed in this article have modi- fed their workers' compensation schemes to extend the liability protections typically provided to stat- utory employers to design professionals actively engaged on construction projects. While these statutes will not aford protection against claims of negligent design, they may provide design professionals facing negligence and premises liability claims for an allegedly unsafe workplace an absolute defense. Tus, prudent design professionals and their counsel should keep abreast of the status of these laws in the states where they practice. Architect and Engineer Immunity Under Workers' Compensation Statutes A 50-State Survey By A. Scott McDaniel and Andrew M. Conway WoRkeRS' ComPenSAtion