Challenges and Opportunities for Innovation in the Public Works ...

causes damage they can be liable for that damage;'° (c) There is also a general duty
under most circumstances that people conduct themselves so as not, absent special
circumstances, to do anything which reasonable foresight indicates would cause
damage to another; failure of this general duty can create legal liability for damage
caused by the failure;" and, (d) An additional source of liability relevant here,
liability imposed strictly upon a party by law, regardless of fault of duty; for example,
in some jurisdictions, the owner of real property is absolutely liable to anyone
damaged or injured by a defect or disrepair in the property.' 2
Most--including particularly lawyers not experienced in construction
matters--don't know, and construction professionals sometimes forget, that construction
contracting is largely a process of risk allocation; there are few immutable rules
imposing responsibility on particular actors in the process.'" Contracting parties thus
'0 See Palm Bay Towers Corporation v. Cram & Crouse, Inc, 303 So.2d 380 (Fla. App.
1974) Engineer held liable for damages resulting from failure to comply with city
ordinance requiring notification to city officials of design changes.
' The key factor is foreseeability that the victim will suffer the specific harm from the
Designer's improper performance or non-performance of the duty. Compare, for
example, Howard v. Palmer & Baker Engineers, Inc., 302 So.2d 228 (Ala. 1974) (in
which possible damages from petroleum fires in as vehicular tunnel were held
sufficiently foreseeable that inspecting engineer liable for failure to recommend
proper equipment for fighting such fires) with Zeigler v. Blount Brothers
Construction Co., 364 So.2d 1163 (Ala. 1978), in which increase in utility rates not
sufficiently foreseeable from collapse of dam.
12 For example, See D'Albora v. Tulane University, discussed in note 9, supra. See also
Shepherd and Bourque, "Strict Liability in the Construction Context," 3 The
Construction Lawyer (No. 3) p. 3, Summer, 1982.
13 One such rule, rarely articulated with the bluntness used here, is that any party with
actual knowledge of a significant threat to human safety, who has some authority to
abate the threat or prevent the injury, must do what he can to protect life; failure to
do so will usually impose liability. In most standard contract documents Designers
have attempted to impose upon Builders all responsibility for compliance with safety
rules and regulations, j.e., assuring safety and protecting life and limb on the job.
However, most standard documents also make the Designer a contract administrator
with the duty to assure that the contract is performed in accordance with its terms;
if a Designer acquires actual knowledge that a Contractor is violating safety
standards in breach of the construction contract, the Designer ignores it and fails to
enforce the contract terms, he does so at his peril. The Kansas Supreme Court held
a Designer to have such a duty in Balagna v. Shawnee County, 668 P 2d 157 (Kansas
1983). Compare, however, Fox v. Jenny Engineering Corporation, 505 N.Y.S. 2d 270
(App. Div. 1986), and Conti v. Pettibone Companies, Inc., 445 N.Y.S. 2d 943 (Misc.
1981), in which a Designer's general duty of inspection, without specific responsibility
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