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Site Safety and Professional Liability

Silence ensures work keeps coming for architect in Market Street building collapse

Architects seem to be caught between a rock and a hard place on issues like this. This article paints a pretty damning picture of an architect's failure to warn enough people about an unstable wall on a job site. But in countless professional practice classes and professional liability seminars, we're constantly warned to not get involved with site safety issues, lest we put ourselves in the position of becoming responsible for means and methods and site safety, which are the responsibility of the general contractor. If we observe an unsafe condition on a job site, the general consensus is that we're supposed to inform the contractor, which is exactly what this architect did.

Thoughts?

 
Nov 1, 15 2:02 pm
gruen
Sounds like the architect did the right thing, but the public thinks we run the job site.

I have ratted out contractors to building inspectors before, when they ignore my letters. But this guy didn't have a chance.

I think it could have happened to any of us.
Nov 1, 15 2:43 pm

I'm so glad you posted this, David! It's a good article, and with a decent mix of comments that, if nothing else, show how little the public understands 1.the role of architects in construction and 2.the way law works in *any* serious public suit.

The article also links to an older article about the L&I inspector for the project who committed suicide over it.  This entire case is a great Pro Practice case study: Students, if your ProPrac professors aren't covering this or similar real-life situations, as then why not. Professional ethics is a messy, fraught, and fascinating topic.

Nov 1, 15 3:28 pm
null pointer

i'm answering a notice of comments from a government agency.

they want me to comment of site safety procedures.

 

hah.

not going to happen.

Nov 1, 15 3:37 pm
geezertect

The time line is the critical factor in this scenario.

If the problem became known to Marinakos at 5:00 in the afternoon (the article says he found out the previous evening) and the collapse occurred at 8:00 the next morning, that would give him virtually no time to do anything.  Leave a recorded message at the building department?  Try to talk to someone at Salvation Army after store hours?  Run down to the jobsite and string tape around the S.A. store?  I wonder if that would even be legal, and what would the cops on the beat do if they saw him.  Report it to the fire department would be the only thing I can think of that he might have done, but that would presume that he realized collapse was that imminent.  

The article writer compares this situation to a lawyer committing obstruction of justice.  But, the two situations are in no way comparable since the architect had no intent for the wall to collapse and hurt someone, and because the lawyer had time to change his mind and behavior.

Who is philly.com anyway?

Nov 1, 15 3:45 pm

Philly.com is the online presence of the Philadelphia Inquirer, the city's paper of record. The author is Inga Saffron, the paper's architecture critic. I generally have a positive impression of her writing, but in this article it seems like she goes out of her way to vilify the architect without explaining the nuances of what architects generally are and aren't responsible for during construction.

Nov 1, 15 4:03 pm

Inga Saffron is an excellent architecture writer and critic, and in fact has won a Pulitzer for it. This article *does* strike me as not very nuanced, or possibly (I don't want to get into slanderous territory) intentionally nuanced *against* the architect, perhaps for personal reasons? Maybe he really is a jerk? 

It's a very challenging situation. As you said, geezertect, he *could* have run down and put up caution tape around the site himself, but....that puts him at risk for a lawsuit from the store owner, or for obstructing the work schedule, or for so many other legal problems. We live in such a litigious society that any action one actually takes can be a reason for someone else to sue you! I wonder if Pennsylvania or Philly have a good samaritan law for architects that would protect us if we're doing something that we think protects the public from imminent danger?

Nov 1, 15 4:26 pm

According to a linked article the wall collapsed at 10:41 am.

The AIA would prefer the whole matter disappears. They don't want to police the profession - at least beyond licensing and collection of dues. The rest is just a money grab: a developer hiring cheap contractors, an architect who didn't want to rock the boat with his client, municipal officials not monitoring the work, insurers looking for an exit, lawyers vying for 1/3 of a multimillion dollar payout, etc., etc. 

Where is Hammurabi when you need him? The builder should be crucified. While the architect did the bare minimum, it's only possible to translate that into criminal negligence after the disaster. We could always do more, but there is typically no reward for it as we live in a competitive - not cooperative - society.

Nov 1, 15 6:55 pm
haruki

David, thanks for posting this. It really brings up some issues worth pondering. From what I can gather the architect did what he was supposed to do and notified the contractor and even went so far as to "order him to do something about it immediately." What the article doesn't say is what the contractor's response to him was. Did he tell the architect to "go to hell," or that he would indeed deal with it right away, or that he would deal with it sometime tomorrow. If the contractor indicated that he would take care of things right away then what more could or should the architect have done? If the contractor said "go to hell" or "I'll deal with it tomorrow" then in hindsight the architect probably should have called the fire department or the building department. An unsupported wall of that height is a serious danger not to be taken lightly.

If I or any of you other architects were driving down a street and we saw an unsupported three story wall on a project that wasn't our own but that looked  clearly be a danger to the public do we have a some sort of sacred duty to bring it to the attention of the authorities? If so wouldn't we also have that duty if it is one of our own projects?

After reading about this case I think I would be more likely step in and call the building department or the fire department  if a contractor on one of my projects didn't take the danger seriously or if I saw a particularly dangerous condition just driving down the street. I live in Los Angeles which is essentially a lawless city where a great deal of work is done without a permit and I see dangerous conditions all the time. If I stick my nose in am I opening myself up for not doing enough? Like if I report it to the building department and they don't check it out for 20 days (that is the LADBS timeline for following up on violation reports) could I get sued if someone gets killed on day 19 for not having called the fire department instead? 

Nov 1, 15 9:02 pm

Reading the comments at the end of the article, it's amazing how many people are calling for the architect's head on a pike, but maybe it shouldn't be surprising given the tone of the article. Most people have no clue how little power architects actually have, and the article did nothing to set the record straight. Look at the donors to any political campaign, and you'll find lots of developers and contractors, but I'm guessing very few architects. And the politicians write the laws with their donor base in mind.

Nov 1, 15 9:22 pm
geezertect

The ignorance of the writer is evidenced by her bringing in the "design" of the new work, which has (I assume) nothing to do with this situation, since they were in the process of clearing the site.

You can always tell how ignorant the public is of our role in the process when they refer to the architect as the one who builds a building, rather than the one who simply designs it.

Nov 1, 15 10:23 pm
Volunteer

Seems like the fire department would be the one to call and have a meeting of the minds with. They are close by, on duty 24/7, and deal with this sort of wall instability as a result of fires. No additional costs out of anyone's pocket.

Nov 2, 15 7:40 am

geezertect, like I said above, Inga Saffron is a Pulitzer-prize-winning architecture critic; she's definitely not ignorant of how this all works. Which is why I really wonder what her intent was in writing something so misdirectional.

IMO she doesn't make it clear enough that there is a difference between the AIA and the PA Licensing Board. Note, AIA bashers: the AIA terminated the membership, and Fellowship status, of Sam Harris (formerly of Kieran Timberlake Harris), but the state of Pennsylvania did not revoke his license. The AIA and the board operate under different requirements for deciding whether and how to discipline an architect.

Which isn't to say I'm always totally thrilled with the AIA's ethics decisions, I'm not. But these things are always more complex than just calling for someone's head.

Nov 2, 15 8:38 am
Olaf Design Ninja_

in nyc you have Special Inspection Agencies and based on certain types of projects Site Safety Managers. Under no circumstance will I ever be a Special Inspection Agency. If you want to make money Site Safety is the place to be.....the best an Architect can do is report it to all including the city. but i know of cases where the city thouht the architect was condemning the building to help the owner kick out the tenants who had rejt atablized leases...in the end the architect won, he sued the city for threatrning him on thise terms....

Nov 2, 15 8:46 am
geezertect

Donna, if she is trying to destroy his career and practice because of a hidden agenda, she ought to be fired.  The Philadelphia Inquirer has an ethics issue of their own, and maybe a libel suit as well.

Nov 2, 15 10:21 am

I don't want to go so far as an accusation, geezer, but it is a very weird article. That said....doesn't reporting often expose wrongdoings and place them before the court of public opinion?

Nov 2, 15 10:45 am
anonitect

The guy, because of his professional knowledge, was in a unique position to recognize the imminent danger the wall posed. He didn't make much of an effort; he was in a position to avert a tragedy that ended with people dead, but didn't, for whatever reason.

Our profession has outsourced so much of its responsibility to engineers and others - if we are too cowardly or lazy to protect the public's safety, then what good are we?

Nov 2, 15 11:12 am
anonitect

You guys sound like the Republican nominees - the media is biased!

Nov 2, 15 11:12 am
geezertect

The architect was first aware of the situation the evening before the collapse.  The collapse occurred mid-morning the following day.  That means a window of about three hours.  Does anyone really think the city bureaucracy would have reacted that fast even if he had informed them?  I'm sure in hindsight he would have been more aggressive.  But, to make him a primary villain is unreasonable.  The demolition sub and the general contractor are still the responsible parties.

Nov 2, 15 11:45 am

anonitect, how do you know, based on what's been reported, that "he didn't make much of an effort"?

Nov 2, 15 12:10 pm
jla-x

the contractor is a licensed professional as well, and probably more qualified to notice and remedy the problem.  also, dumb protectionist laws have lead to fine lines in overlapping areas of practice that prevent, or at the very least discourage the architect from encroaching into GC territory.  

Nov 2, 15 12:24 pm
jla-x

had I been in his situation I would have called the police/fire dept to stop work.

Nov 2, 15 12:25 pm
wurdan freo

In road construction, all phasing, traffic coordination and temporary measures are documented in the construction documents. If you're going to be sued for it, might as well get paid for it. Own it.

Nov 2, 15 12:39 pm
wurdan freo

The other option would be to cut it from your services completely. Dont show up on site. Make the owner hire a third party for CA. Maybe that's a better option for the little guy?

Nov 2, 15 12:50 pm
anonitect

Donna- I followed a link in the posted article. Its pretty damning. 

Worrying about potential liability is no reason to speak up when the public's safety is in jeopardy. And there wasn't a "window of about three hours," it was about 17 hours. The contractor hadn't been on top of things at that job - at the least Marinakos should have been at the job site at 7 a.m. to make sure the contractor was on top of it. Remember, people were crushed to death.

Nov 2, 15 1:05 pm

I'm not defending the decision to NOT bodily place yourself in front of the Salvation Army store and prevent them from opening that day. I would like to think that's what *I* would do, but really, being generally an optimist, I likely would have hoped for the best. I think it's impossible for any of us to know FOR SURE what we would do in any given situation.

Note too that there were union carpenters working on a project across the street who boasted to the press the day of the collapse that they knew this was going to happen, that they'd been watching the demolition for days previously and had even spoken to the demo contractor about how unsafe he was being. Are they culpable, too? I'm totally pro-union, but I point out their union status because, like with AIA membership, being a union member gives you greater responsibilities than you have if you're not one.  Did they renege their commitment to upholding safety standards by not reporting it?

I have taught my ProPrac students to never, ever tell a contractor how to remedy a potentially unsafe situation, because that does make you culpable if the fix makes things worse (which can easily happen).  We are absolutely, as architects, not in charge of jobsite safety. But again, I'd like to think that if I were in the situation this architect was in I would handcuff myself to the doors of the store until it was fixed. Of course, given that the job was three months behind schedule and the owner was screaming for it to be done, I'd likely have been fired, but if that saves six lives it's obviously worth it.

Nov 2, 15 1:20 pm

(Sorry to carry on and on about this. I LOVE this kind of topic! Ethics in practice and parsing out the specifics of every little scenario of these kinds of events makes me giddy.)

Nov 2, 15 1:26 pm
SneakyPete

Every insurance agent I have ever heard during their yearly spiels at firms I worked for have basically said to ignore the contract if you see someone in immediate danger but make it clear in the words you say that you are acting in your capacity as a CONCERNED CITIZEN and NOT as the agent of the owner or as an Architect.

Nov 2, 15 1:40 pm
quizzical

In my humble opinion, the article referenced in the OP's post was, at best, a hatchet job and reflects the author's absolute lack of knowledge about the current state of construction contract law and the long history of litigation related to construction contract law.

The architect in question fulfilled his contractual obligations and, in my opinion, also his moral / ethical obligations. Had he gone further by stopping work on the site and/or preventing the store from opening and then nothing bad had happened on the site, he likely would have been sued for damages by both the contractor and the retailer for irresponsible interference.

The contractor was solely responsible for means, methods and safety on the site -- he was informed by the architect of an apparent unsafe condition and failed to respond. The contractor bears sole liability for what happened.

Nov 2, 15 1:43 pm

I tend to agree with quizzical. The benefit of hindsight makes it easy for Monday morning quarterbacks to pontificate about what should have been done, but had I been in the architect's shoes I probably would've done the same thing.

I'm not sure if Philadelphia has something similar, but New York City has a 311 non-emergency number and every job site in the city has a big sign that says "CALL 311 TO ANONYMOUSLY REPORT UNSAFE CONDITIONS AT THIS SITE". Maybe I would've done that if I thought the wall was in imminent danger of collapse, such as if a severe storm with strong winds was in the forecast.

If, at that point, the city doesn't respond fast enough and/or doesn't issue a stop-work order and the wall collapses, at least I'd have a record of the 311 call in addition to my correspondence with the contractor. But if I called 311 and the city stops work on the project, the client would almost certainly have my head on a pike if they knew I had made the call.

Nov 2, 15 1:51 pm

SneakyPete, that's a nice idea, but doesn't work in my home state of Indiana: We have personal liability here, meaning that because I'm a registered professional I am personally liable for actions performed under the area of expertise of that registration.  In other words, I CANNOT be just a concerned citizen; I'm a registered architect, so I can only make judgements within the realm of possessing expertise.

quizzical is correct, of course, and much briefer than I am able to be.  But! that doesn't mean that handcuffing oneself to the doors of the store isn't an ethical decision.  Perhaps a more ethical decision, if such a thing exists.

Nov 2, 15 1:54 pm

Which, back to my first paragraph/response to Sneaky Pete in my post above, is a great argument, IMO, for a good samaritan law for architects.

Nov 2, 15 1:55 pm

^ I agree 100% about the need for some kind of Good Samaritan law. This is something the AIA should be pushing for.

Nov 2, 15 1:57 pm
SneakyPete

It's the height of irony when something called "personal liability" actually PREVENTS one from doing the right thing.

Nov 2, 15 2:20 pm

Well the intent is that a person cannot SHIELD themselves from liability - I can't perform a negligent act for a client then hide behind my corporation to protect me from any liability. So I can't just dissolve my corporation and skip merrily into the sunset to form a new one, like so many real estate developers (ahem) can.

Which incidentally....the architect in question here did apparently declare bankruptcy then start a new firm after this happened - a few years after, and I have no way of knowing if it was a direct result of this project or not.

Nov 2, 15 2:37 pm
quizzical

^ JLC-1's link above indicates that Philadelphia does, indeed, have a 311 number and a concerned citizen placed a call to that number, reporting an unsafe condition adjacent to this site. It appears the building inspector assigned for follow-up was not thorough - and admitted to being not thorough.

The article also says that the excavator operator implicated in the collapse "tested positive for the pain killer Percocet and marijuana on the day of the collapse"

These are tremendously important facts not previously included in this thread, and - in my view - further absolve the architect of any responsibility whatsoever.

Nov 2, 15 3:39 pm
Nate Hornblower

Don't let nuance get in the way of the narrative that you've already decided, Inga Saffron, Pulitzer Prize Winner

IDK, doesn't calling the contracter the night before get him off the hook, ethically? That's what the courts decided.. why not good enough for you Pulitzer Prize Winner? I don't think the AIA should be getting into politics anyway, they aren't the NFL and we don't want a Roger Godell-Deflategate situation. 

How did Saffron win a pulitzer prize? Is it the whole, local architecture critic mumbo jumbo? I don't anyone actually read the pieces, which are usually filled with hyperbole and flatten entire cities into stereotypes. 

Nov 2, 15 3:44 pm
curtkram

the architect can't just fix the wall.  he's only one person, lacks the equipment, lacks the expertise, etc.  so the only thing he can do is ask for help.  which he did.  he contacted the person who had access to the site, had the means to fix the problem, was responsible for what happened at the site, etc.  i don't understand why there would be an expectation to also contact the fire department or the building department or the press or anyone else.  the person who should have fixed the problem should have fixed it.

so there isn't a question as to whether the architect contacted someone for help.  the problem is that the architect contacted someone who had a financial interest in not fixing the problem?  we should have some sort of legal liability to stop trusting our peers?  or the problem is that the architect didn't follow up with the person they contacted to make sure they did what they should have done?

granted if the contractor or whoever campbell was told him they would not fix the problem, then i suppose there would be some impetus to find another person (or more people) to contact.

Nov 2, 15 4:44 pm

Here is an undated compendium of various states' Good Samaritan laws for architects compiled by the National AIA in a pdf. I don't know how current it is, as I can't find a date on it. My recollection, though, is that most Good Samaritan laws relate to emergency situations only, not to day to day practice of the profession. 

Example: after a tornado, you try to pull someone out of a collapsed building, the rubble shifts as you pull, they die. A Good Sam law would protect you from a lawsuit claiming you should have known better because you are an architect.

It reminds me of two graduates of Ball State several years ago: wanting to be truly helpful in emergency scenarios like the tsunami, they discovered that the most important skillset is proper chainsaw training. So they got chainsaw certified.

Nov 2, 15 4:45 pm

quizzical nailed it - damned if you do, damned if you don't.

Nov 2, 15 5:12 pm
haruki

^ Donna, very interesting.  Perhaps a little off topic but in California they actually do deputize architects to help with red tagging buildings after earthquakes and give us good samaritan protection during that period. That happened in Los Angles with the last big earthquake in 1994. Also perhaps interesting, in light of the "California list of shame" thread from last week, California increases the fines of unlicensed people who claim to be an architect during a period of emergency to something like $10,000 with even some potential jail time. 

Nov 2, 15 5:41 pm
shellarchitect

I read the story differently than most, I think the author is more upset that no organization (AIA) had undertaken an investigation of the architect. To me it is more of critique of architecture licensing enforcement, using this as a prime example, than anything else

Nov 2, 15 7:29 pm
Olaf Design Ninja_

only thing an architect can and should do is report it. this is what the journalists does not understand and why the Testimony of the architect, which is a report, gave them immunity - because in short why should the architect be responsible for the actions of the contractor, city, and owner? they can not, we do what we do best, make a drawing and write a letter. a security guard can not be held accountable for the criminals.

Nov 2, 15 7:54 pm
Olaf Design Ninja_

i say security guard because an Architect is not really a policing force nor can they shut a job site down. many people often refer to themselves as quality control cops, when in reality you are a quality contril security guard.....the city can revoke a permit and put a stop work order on a job, the architect can not. the architect can not fire the contractor either, the owner can. so what an architect does is more like a security guard than a cop. you make the report and inform the authorities and let the crazy bastards make their own often dumb decisions.

Nov 2, 15 8:35 pm
Hank Joele

Indeed, an architect's role in regards to the safety on jobsite when the project is approved is not the most significant. However, nobody should forget the Safety by Design principles. Architects and designers should always keep these principles in mind in order to make sure that the construction process is injury-free.

Sep 22, 19 12:27 pm
jla-x

if you want the control to “shut a job down” or “fire a contractor” can’t you just have the owner sing something authorizing you to act on their behalf...giving designer power of attorney over the project?


I’ve wondered a contractual way to empower the designer/architect more during construction phase.  It doesn’t seem impossible with the right contractual maneuvering...

Sep 22, 19 12:49 pm
RickB-Astoria

It's what is known as "authorized representative" and that is what you are in that case. Sometimes that can be the client's "project manager" but yes, you can have that in the contract but you need to have that arrangement from the beginning because once construction begins, it is a messy situation to start that then.

However, how that effects your professional liability insurance which has been the single most significant influence on how practice of architecture during construction phase and all phases of a project. In some way, it has even effect on us building designers and other unlicensed designers where we would carry liability insurance.


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