In Waltman v. Engineering Plus, Inc., 2019 WL 1071533 (Miss. March 7, 2019), the Mississippi Supreme Court held that an engineering firm providing engineering services for a roof repair did not have a duty to warn a roofing company’s employee of a dangerous condition.
Engineering Plus, Inc. (“Engineering Plus”) was retained by the Lauderdale County Board of Supervisors (the “County”) as the project engineer to replace the roof on several buildings owned by the County. Engineering Plus prepared the project details, contract documents and bidding documents the County used to hire a general contractor. The County hired Norman Enterprising, Inc. (“Norman”) to repair the roofs. George Waltman (“Mr. Waltman”), a Norman employee, was subsequently injured when he fell through the roof of one of the buildings.
Mr. Waltman sued Engineering Plus, alleging it knew of the roof’s dangerous condition, but failed to warn him. Mr. Waltman argued Engineering Plus assumed a duty to supervise the project based on the following contract language between the County and Norman: ““It is further agreed that the work shall be done under the direct supervision and to the complete satisfaction of County Engineer or his authorized representatives.” Mr. Waltman also argued Engineering Plus assumed a duty owed to Mr. Waltman because it had knowledge of the dangerous condition.
Engineering Plus moved for summary judgment, arguing it did not owe a duty to Mr. Waltman. The trial court granted the motion.
On appeal, the Mississippi Supreme Court affirmed summary judgment, holding Engineering Plus was not responsible for the safety of Mr. Waltman. The Court relied on a provision in the County and Norman contract which stated Norman was “responsible for all loss or damage arising out of the nature of the work aforesaid, or from the action of the elements, and unforeseen obstruction or difficulties which may be encountered in the prosecution of the same and for all risks of every description connected with the work for faithfully completing the whole work.” The Court found this provision limited the responsibility for Mr. Waltman’s safety to Norman.
Additionally, the Court held knowledge of a dangerous condition alone does not satisfy the seven-factor test adopted by the Mississippi Supreme Court in McKean v. Yates Eng’g Corp., 200 So. 3d 431 (Miss. 2016) to establish a duty. The Court held there was no evidence of Engineering Plus’ supervision and control, participation in work site activities, assumption of responsibility for safety practices or authority to issue change orders or stop work would otherwise indicate a duty existed.
The Court’s ruling affirms Mississippi law’s limitation that an architect or engineer can only be liable for failing to warn a construction worker of a dangerous condition if it assumed responsibility for construction safety, either by contract or conduct.