Submittal Review: Study the Shop Drawings

Jobsite injuries are a fertile field for claimants to argue that the process of reviewing and approving submittals creates a basis for liability to the injured parties. Workers injured on the jobsite assert liability based on the review process.
By Ken Slavens
February 3, 2020

Submittals are a formalized means of communication in construction and a building block to a successful project. Under some circumstances, however, the process can create unwelcome consequences.

Jobsite injuries are a fertile field for claimants to argue that the process of reviewing and approving submittals creates a basis for liability to the injured parties. Workers injured on the jobsite assert liability based on the review process.

Approval of shop drawings that did not include temporary bracing or temporary connections was argued to be negligence by the design professional in Waggoner, et al. v. W & W Steel Company, et al., a 1982 case in which two workers died after a gust of wind caused an unsecured and unbraced piece of steel to collapse. The event resulted from a failed connection, which lacked a temporary device to keep the connection from failing during construction. By the time the suit went to trial, the sole remaining defendant was the architect. At trial the court directed a verdict, meaning the court found the architect had no liability as a matter of law.

The suit was appealed to the Oklahoma Supreme Court, which looked to the contract documents to determine the review process and purpose of shop drawings. The court noted the contract documents provided shop drawings were to be first submitted to the contractor for review and verification of “all field measurements, field construction criteria, materials, catalog numbers and similar data.”

The contractor’s approval is a representation of having checked each shop drawing against the contract. The documents were clear that the contractor is “solely responsible for all construction means, methods, techniques, sequences and procedures.” However, the architect had to review “for conformance with the design concept […] and with the information given in the Contract Documents.”

The court concluded that it was the duty of the contractor—not the architect—to see that the shop drawings included temporary connections, a directive encompassed in the field construction criteria and construction means, methods, techniques, sequences and procedures. The architect could not be held liable for the injuries sustained because of an unsafe construction procedure.

Contractor Held Liable

The holding in Waggoner is in line with other opinions. For example, the Illinois Court of Appeals adopted the same essential position in Block v. Lohan Associates, Inc., et al. (1993) when a worker sustained severe head injuries in a fall while erecting the precast panels during construction of a new building. The injured worker’s attorney argued that the design professional who agreed to review shop drawings and submissions approved the submissions without requiring erection procedures be included.

The court found that the contract documents uniformly and clearly limit the architect or lead designer’s responsibility regarding shop drawings to a determination of design conformance and not worker safety. The design professional did not have control or charge of the construction means, methods, techniques, sequences, procedures or safety precautions during the construction processes. The court made essentially the same findings from the structural engineering subconsultant to the architect.

Similar arguments were addressed in a suit by injured plaintiffs related to the absence of temporary barriers or handrails during construction with the same essential outcome in National Foundation Company v. Post, Buckley, Schuh, & Jernigan, et al. (1995). The design and placement of the handrails and barricades were found to be temporary in jobsite areas and merely a safety measure, not an inherent design requirement. The duty for worker safety was placed on the contractor, which exercises control and supervisory responsibly on the jobsite.

Design Firm Held Responsible

If the approved shop drawings do not conform to the design, the courts may reach a different conclusion. In Jaeger v. Henningson, Durham, & Richardson, Inc. (1983), the design professional was contracted to provide architectural services for a South Dakota office building. Two workers were injured during steel erection.

A shop drawing had erroneously called for 14-gauge steel for a landing pan, contrary to the specifications, which required 10-gauge steel. The design professional failed to notice the serious discrepancy in gauge and approved the shop drawing; the differing steel was fabricated in accord with the approved drawing and was later found to be the cause of the injuries.

The court concluded that the design team had negligently failed to “supervise the shop drawings” under the contract and was the proximate cause of the accident. The contract in this suit does not seem to have the AIA language requiring a written notice and approval for deviations.

The takeaway: The submittal process must be followed and managed. Although submittals are generally not part of the “work” as defined by contract documents, shop drawings ensure the owner’s desired outcome is achieved, the designer’s concept is brought to fruition and the contractor’s work complies with the contract’s obligations. When the process runs off the tracks, it can create issues for all involved.

Careful attention to the contractual obligations will ensure safe project delivery; but, when accidents do occur, careful attention to the details assures responsibility falls where the parties intended under the contract.

by Ken Slavens
Slavens works out of Husch Blackwell's St. Louis office and belongs to the firm’s real estate, development and construction industry group.

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