Skip to main content



Alves v. CME Associates

A-6293-03T2 (N.J. Super. App. Div. 2005) (Unpublished)

PROFESSIONAL ENGINEERS; LIABILITY — Under a New Jersey statute, a professional engineer is immune from liability for a construction accident unless its employee or representative was present at the portion of the project or site prior to the accident, had actual knowledge of the dangerous condition, had the opportunity to warn the responsible contractor, and failed to do so within a reasonable time.

A worker was injured on a sewer improvement project. He sued the project engineer. “Pursuant to the pertinent statute governing liability of professional engineers, a professional engineering firm is immune from liability unless its employee or representative ‘was present at the portion of the project or site .... prior to or at the time of the accident, ... had actual knowledge of the site conditions which are alleged to be a cause of an imminent danger[,] and ... had the opportunity to notify the responsible contractor and worker of the presence of the site conditions which are alleged to be a cause of an imminent danger, and failed to do so within a reasonable period of time.’” Here, the project owner’s contract with the professional engineer “relieved the engineering company of on-site safety responsibility.” The improvement contract assigned such responsibility to the contractor. The professional engineer’s only responsibility on the site “related to verifying that the contractor’s work was being performed in full compliance with the project’s design.” The injured worker argued that engaging in trenching operations without an independent safety engineer and without giving safety instructions to laborers, and without anyone responsible for insuring compliance with the Occupational Safety Health Act, constituted dangerous site conditions. The Court rejected that contention, holding that “[e]ven if [those] procedures were not followed, the conditions on [the site] still [might have been] safe and [might] not constitute an imminent danger to workers.” Thus, according to the Court, the injured worker “[had] not alleged any site conditions that were imminently dangerous” and the professional engineer was therefore immune from liability by virtue of the cited statute. Also, because the contractor “was to be responsible for safety on the site” and the professional engineer “had not assumed any responsibility for project safety, [the professional engineer could not] be liable to a contractor’s employee” for “any injury that arises out of and in the course of the employee’s construction work.” Although the professional engineer’s immunity might be denied if it engaged in “willful misconduct or gross negligence,” there was no factual basis for such a claim. According to the Court, “it is not gross negligence or willful misconduct for [a professional engineer] to have agreed with [the property owner] to allocate on-site safety responsibility to the general contractor.”


MEISLIK & MEISLIK
66 Park Street • Montclair, New Jersey 07042
tel: 973-783-3000 • fax: 973-744-5757 • info@meislik.com