Written by: Juan J. Miranda
An engineer’s obligations on any given project are generally defined by the Engineering Services Agreement (ESA) between the engineer and either the project owner or the general contractor. Although the ESA defines the obligations among the parties to the agreement, those obligations may be used by courts to determine an engineer’s duties owed to third parties not privy to the ESA.
Under Louisiana law, the duties owed by an engineer to third parties, such as a construction worker, are generally determined by the obligations undertaken by the engineer in the ESA and from the obligations undertaken by the general contractor pursuant to the General Contract. See, Yocum v. City of Minden, 26, 424 (La. App. 2 Cir. 1/25/95); 649 So. 2d 129. “[In] determining the duty owed to an employee of a contractor by an engineering firm also involved in the project, the court must consider the express provisions of the contract between the parties." Id. at 132. The only way a legal duty owed to a non-contracting third party can arise is if the contract between the owner and the general contractor and the owner and engineer lead to the conclusion that the engineer was responsible for those activities that a plaintiff alleges the engineer failed to perform. See, Black v. Gorman-Rupp, 2000-1223 (La. App. 4 Cir 07/11/01); 791 So. 2d 793, 795-96.
In other words, Louisiana courts look to all pertinent contracts, including the ESA and the General Contract, to determine whether an engineer owed a duty to an injured third party. If, for example, a construction worker is injured on a project due to unsafe site conditions, courts will look to all pertinent contracts to determine which party undertook the obligation for site safety, means and methods, supervision, and warnings.
Engineers should always be cognizant of the fact that the contractual obligations agreed to in the ESA may also give rise to duties owed to third parties. Likewise, the contract between the owner and general contractor may be determinative of whether the engineer owes a duty to a third party. The analysis used by Louisiana courts can be a double-edged sword for an engineer as the engineer may not always be aware of all contractual provisions of the General Contract. On the one hand, the engineer may benefit from the GC’s expansive obligations on a project, which generally include means, methods or techniques, site safety, and duties to protect against dangerous site conditions. On the other hand, the General Contract may delegate certain obligations to the engineer of record; obligations that may give rise to duties owed to third parties.
For example, an engineer may take on the obligation to provide contract administration and periodic site visits to make observations regarding technical issues. Such contract language may inadvertently give rise to duties owed to third parties if it is unclear from the pertinent contracts that such undertakings should not be construed as supervision of construction of the project. As such, an engineer should always ensure that obligations undertaken in the ESA do not conflict with obligations undertaken by the general contractor in the General Contract and that the General Contract does not purport to expand the engineer’s obligations.
Courts will generally find that the engineer does not owe a duty to a third party when the pertinent contracts clearly define the engineer’s obligations and the obligations do not include activities complained of by the third party. For example, in Black v. Gorman-Rupp, an injured plaintiff alleged that an engineering firm was negligent in failing to properly supervise the work, design a system to safely remove water from the job site, and by failing to provide a safe place to work. 2000-1223 (La. App. 4 Cir 07/11/01), 791 So. 2d 793. The engineering firm argued that its contract was solely for engineering services and involved checking the construction work generally to make sure it complied with the contractual requirements. In evaluating the case, the court stated:
The only way a legal duty to act can arise from the facts before this Court, is if the contract between the [Owner] and [the General Contractor] and the [Owner] and [Engineer] lead to the conclusion that [the Engineer] was responsible for performing those activities that appellant alleges that [the Engineer] failed to perform. After a careful review of the contracts, we are of the same opinion as the trial court that [the Engineer] did not have a contractual obligation to supervise construction or site safety. The mere fact that [the Engineer] was involved in the construction process and had contractual duties to the [Owner] does not create an all-encompassing duty to protect everyone from every risk which could be encountered during the course of the project. To defeat the summary judgment the plaintiff cannot merely allege that [the Engineer] owed a duty to [the deceased] but must demonstrate some basis in law for the imposition of this duty. In the absence of such a duty there can be no liability on the part of [the Engineer].
Id. at 795-796.
Black and other cases demonstrate that courts will generally refer to applicable contracts to define the legal duties owed or not owed under the circumstances. See, e.g., Yocum v. City of Minden, 26, 424 (La. App. 2 Cir. 1/25/95), 649 So. 2d 129; Johnson v. R.R. Controls, L.P., No. 2:11-CV-1722, 2015 U.S. Dist. LEXIS 16171, at *6-7 (W.D. La. Feb. 10, 2015). But the engineer should always be aware of potential pitfalls arising from lack of clarity or well-defined obligations in the contract documents. The engineer should know his role and obligations on the project and those of the owner, general contractor, subcontractors, and other engineering consultants on the project including clearly defined obligations in the contract documents will avoid inadvertently creating duties owed to third parties.