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Issue link: http://journaloflaw.epubxp.com/i/477043
40 Journal of American Law // Spring 2015 contractual clauses that limit their liability for the actions of the contractor, such as § 3.6.1.2 of the AIA contract form B101-2007 that provides: Te architect shall not have control over, charge of, or responsibility for the construction means, methods, techniques, sequences, or procedures or for safety precautions and programs in connection with the work, nor shall the architect be responsible for the contractor's failure to perform the work in accordance with the requirements of the contract documents. Te architect shall be responsible for the architect's negli- gent acts or omissions, but shall not have control over or charge of, and shall not be responsible for, acts or omissions of the contractor or of any other persons or entities performing portions of the work. However, construction projects are rarely that simple. For construction phase services, design professional contracts usually require some degree of on-site observation or inspec- tion. For example, § 3.6.2.1 of the AIA contract form B101- 2007 provides: The architect shall visit the site at intervals appro- priate to the stage of construction, or as otherwise required in Section 4.3.3, to become generally fa- miliar with the progress and quality of the por- tion of the work completed and to determine, in general, if the work observed is being performed in a manner indicating that the work, when fully completed, will be in accordance with the contract documents. However, the architect shall not be re- quired to make exhaustive or continuous on-site inspections to check the quality or quantity of the work. On the basis of the site visits, the architect shall keep the owner reasonably informed about the progress and quality of the portion of the work completed and report to the owner (1) known de- viations from the contract documents and from the most recent construction schedule submitted by the contractor and (2) defects and deficiencies observed in the work. Other projects may require the design professional to play a signifcant hands-on role during construction. Take these provisions included in the contract between a public en- tity and contractor for a public works project: Te engineer shall act as the owner's representative during the construction period, shall decide ques- tions which may arise as to quality and acceptability of materials furnished and work performed…. Te engineer shall make visits to the site and determine if the work is proceeding in accordance with the con- tract documents…. On the basis of the engineer's on-site observations as an experienced and quali- fed design professional, the engineer will keep the owner informed of the progress of the work and will endeavor to guard the owner against defects and de- fciencies in the work of the contractor. Claimants will rely on contract provisions such as these to argue that, as a trained professional obligated to make site inspections, the architect or engineer had a duty to monitor, observe, and report unsafe working conditions and practices. As this latter example illustrates, a claimant will not limit the inquiry solely to the design professional's contract. Te con- tractor's contract and the site-specifc actions of the design professional also may relate to defning his duty, if any. When the contract requires the design professional's active involve- ment during the construction phase, the fact that the con- tracts with the contractors and subcontractors provide that they alone control the means and methods of construction, including compliance with all safety procedures and laws, may not be enough to support a judgment in the design profes- sional's favor. exclusive Remedy and Statutory employer immunity framework Workers' compensation laws throughout the country contain so-called "exclusive remedy" doctrines as part of the com- promise created by these statutes. Te compromise guaran- tees employee coverage for on-the-job injuries while simul- taneously limiting the employee's right to sue outside the structure of the workers' compensation laws. Tis compro- mise ideally provides employers, insurers, and co-employees with a sense of predictability and the ability to manage and allocate the risk from on-the-job injuries. Te practical im- plication of the exclusive remedy rule from a defense per- spective is that immediate employers are immune from suit by injured employees once they accept workers' compensa- tion benefts. 1 1 Many states recognize through their statutes or common law an exception to the employer's absolute immunity if the employer failed to secure the required workers' compensation insurance, see, e.g., Okla. Stat. tit. 85A, § 5(B)(1), or committed an intentional tort. Id. at § 5(B)(2) (Te injury was caused by an intentional tort committed by the employer. An intentional tort shall exist only when the employee is injured as a result of willful, deliberate, or specifc intent of the employer to cause such injury. Allegations or proof that the employer had knowledge that the injury substan- tially was certain to result from the employer's conduct shall not constitute an intentional tort. Te employee shall plead facts that show it is at least as likely as it is not that the employer acted with the purpose of injuring the employee. Te issue of whether an act is an intentional tort shall be a question of law); see also A.R.S. §§ 23-1022 (A)-(C) [Arizona] (Te right to recover compensation pursuant to this chapter for injuries sustained by an employee or for the death of an employee is the exclusive remedy against the employer or any co-employee acting in the scope of his employ- ment, and against the employer's workers' compensation insur- ance carrier or administrative service representative, except as provided by section 23-906, and except that if the injury is caused by the employer's willful misconduct, or in the case of a co-em- ployee by the co-employee's willful misconduct); see, A.C.A. § 11- 9-105(b)(1) [Arkansas] (If an employer fails to secure the payment of compensation as required by this chapter, an injured employee,