Hanna v. Huer, Johns, Neel, Rivers and Webb

• Court: Kansas Supreme Court
• Writing for the Court: HOLMES
• Citation: Hanna v. Huer, Johns, Neel, Rivers and Webb, 233 Kan. 206, 662 P.2d 243 (Kan. 1983)
• Decision Date: 20 April 1983
• Docket Number: No. 54238,54238
• Parties: , 1983 O.S.H.D. (CCH) P 26,581 Duone HANNA and O.D. Pearman, Appellees, v. HUER, JOHNS, NEEL, RIVERS AND WEBB, Appellant.

Page 243

662 P.2d 243

233 Kan. 206, 1983 O.S.H.D. (CCH) P 26,581

Duone HANNA and O.D. Pearman, Appellees, v. HUER, JOHNS, NEEL, RIVERS AND WEBB, Appellant.

No. 54238.

Supreme Court of Kansas.

April 20, 1983.

Syllabus by the Court

1. An architect, or other design professional, who contracts with an owner of property for the preparation of plans and specifications for the erection of a building and who agrees to be responsible for the general administration of the construction contract between the owner and the general contractor is not contractually responsible for the safety of the workmen on the jobsite unless such duty is specifically assumed in the contract.

2. Generally the duty of an architect to supervise or administer the construction work merely entails a duty to see that the building when constructed meets the plans and specifications for which the owner agreed to pay.

3. An architect who has contracted to supervise the construction of a building project may affirmatively or by his actions expand his contractual duties to include responsibility for safety practices on the jobsite. Factors to be considered in determining whether an architect has assumed such a responsibility include (1) actual supervision and control of the work; (2) retention of the right to supervise and control; (3) constant participation in ongoing activities at the construction site; (4) supervision and coordination of subcontractors; (5) assumption of responsibility for safety practices; (6) authority to issue change orders; and (7) the right to stop the work.

4. As a professional, an architect cannot stand idly by with knowledge of unsafe practices on the jobsite and take no steps to advise or warn the owner or contractor.

5. For negligence to exist there must be a duty and a breach thereof before the conduct becomes actionable. If no duty exists there can be no negligence. Following Madison v. Key Work Clothes, 182 Kan. 186, 318 P.2d 991 (1957).

6. Negligence is not actionable unless it involves the invasion of a legally protected interest, the violation of a right. In every instance, before an act is said to be negligent, there must exist a duty to the individual complaining, the observance of which would have averted or avoided the injury. The plaintiff who sues his fellow man sues for a breach of duty owing to himself. Following Blackmore v. Auer, 187 Kan. 434, 357 P.2d 765 (1960).

Jerry G. Elliott, of Foulston, Siefkin, Powers & Eberhardt, Wichita, argued the cause, and E. Lael Alkire, Wichita, was with him on brief for appellant.

Ralph E. Skoog, of Ralph E. Skoog, P.A., Topeka, argued the cause, and Gene E. Schroer and Dan L. Wulz, of Jones, Schroer, Rice, Bryan & Lykins, Chartered, Topeka, were with him on brief for appellees.

HOLMES, Justice:

This is an appeal by the defendant, Huer, Johns, Neel, Rivers and Webb, a professional corporation and formerly a partnership, (hereafter Huer, Johns, or the architect) from two judgments entered upon jury verdicts in favor of two construction workmen for personal injuries received on the construction jobsite. The injured workmen, O.D. Pearman and Duone Hanna, filed separate suits which were consolidated for trial in the district court. Huer, Johns appeals from each judgment and the cases remain consolidated on appeal.

The plaintiffs were ironworkers employed by American Construction Erection Services Company, Inc., of Wichita (ACESCO). ACESCO was hired as a subcontractor to erect the structural steel in the construction of a Dillard's department store building in Wichita's Towne East Shopping Center. ACESCO was hired by The Law Company of Wichita. The Law Company was technically a subcontractor itself under the general contractor, Pickens & Bond Construction Company of Little Rock, Arkansas. The Law Company, however, functioned in the manner of a general contractor on the project site and will be considered as such for the purposes of this appeal, and will be referred to as the general contractor. Huer, Johns, under a contract with the project owner Dillard's, was responsible for drafting the documents for the owner-builder contract, including the plans, specifications and general conditions and was also responsible for the general administration of the construction contract.

The accident which injured Hanna and Pearman occurred about 3:00 p.m. on October 18, 1974. At that time Hanna was the foreman of the detail gang for ACESCO. Pearman was a welder on Hanna's crew. The detail gang was responsible for permanently securing the structural steel once it had been put into place by the company's raising gang. The unfortunate accident which resulted in serious injuries to each plaintiff occurred when a steel tie joist that Pearman was sitting on at an upper level of the building's steel skeleton fell, hitting Hanna, knocking him to a lower level floor and then into an elevator shaft. The tie joist that Pearman was sitting on should have been secured by the raising gang to the steel structure at one end by either bolting or tack welding, but was not. In addition the joist was not the proper length and was fabricated for use in another part of the building. The combination of the tie joist being too short and the failure to secure it at one end to the steel beam resulted in the joist being dislodged from its position and the injuries to the plaintiffs. Plaintiffs assumed the joist was properly secured at one end when, in fact, it was kept aloft merely because each end was resting upon beams which were already in place. Pearman made no inspection of the length of the joist nor determined if it was securely fastened to the beam and Hanna could not see the ends of the joist from his position below.

Plaintiffs originally filed suit against their employer, the general contractors on the job, the steel fabricator, the owner and the architect. At the time of trial, Huer, Johns was the only viable defendant remaining in the action for the purpose of liability although the jury was instructed to apportion the comparative fault for the accident in each case among each plaintiff, the general contractors, the employer, the owner and the defendant Huer, Johns.

Plaintiffs' action was based upon two theories of liability, both based upon negligence. First, they contend that the employment contract between Huer, Johns and Dillard's included the responsibility for safety precautions upon the project. It is contended that ACESCO was notoriously derelict in providing safe working conditions and that if defendant had not been negligent in the performance of its contractual duties in administering the construction of the project the accident would not have happened. Second, it is contended that if Huer, Johns did not breach its contractual duties it was at least guilty of negligence which was the proximate cause of plaintiffs' injuries. Defendant, on the other hand, asserted there was no contractual duty to supervise or maintain safety standards on the project and that there was no professional negligence on its part. Huer, Johns had been the architects for Dillard's on several construction projects and did not have a written contract of employment apart from the contract between Dillard's and the general contractor.

Clyde Webb, a principal in Huer, Johns, testified that it was his firm's responsibility under its oral contract with Dillard's to design the building, develop the contracts, plans and specifications and "get it built." The contract documents prepared by Huer, Johns included the plans, drawings, specifications and American Institute of Architects Document A201. A201, along with the plans, etc., described therein and collectively called the contract documents, constituted the construction contract between the owner and the general contractor. Although Huer, Johns was not a party signatory to that contract, in addition to setting out the agreements between the owner and the general contractor, it also specifies the duties of the architect and contains certain provisions pertaining to the subcontractors. All parties rely on certain provisions of A201 and there is no serious contention that A201 is not a part of the oral agreement between Huer, Johns and Dillard's. Plaintiffs contend that under the oral employment agreement, including A201, Huer Johns was responsible for safety conditions on the project; that ACESCO was notorious for its failure to follow safety procedures; that defendant knew or should have known ACESCO was sloppy and careless in its work and therefore Huer, Johns was liable for plaintiffs' injuries.

There was considerable testimony about the careless procedures followed by ACESCO and such unsafe practices were well known to The Law Company's safety man on the project, to its superintendents and to plaintiffs who had been employees of ACESCO for some time. However, it is also clear that no one ever advised Huer, Johns of the numerous problems being experienced with ACESCO.

Mr. Webb said he visited the construction site on occasion and others from his firm visited the site periodically for the purpose of fulfilling Huer, Johns' obligation to the project owner to make certain that the construction was progressing satisfactorily and conformed to the plans and specifications. It was Huer, Johns' obligation to require that the contractor lived up to its agreement with the owner. Huer, Johns periodically approved completed work in order for the builders to be paid. Webb testified that he never made any inquiries about jobsite safety and that safety was not part of Huer, Johns' responsibility. He knew The Law Company, which was acting as the general contractor on the project, had a safety program and a safety man on the project, and he was satisfied with that knowledge. He also testified he was not aware of any safety problems with ACESCO and had been advised of none.

Steven Harrell, an employee of The Law Company, was its safety inspector and responsible...