We’re not immune

Due to the absence of a comprehensive, federal Good Samaritan law, A/E professionals are hesitant to lend a helping hand after an emergency.

We have all heard someone in a perilous condition say, “Don’t just stand there, help me!” Or, more commonly the victim might ask, “Is there a doctor in the house?” But professionals are sometimes reluctant to offer their services as a volunteer for fear of getting sued. Architects and engineers are among those who are often asked to lend a hand during or after an emergency, whether the situation is man-made or a natural disaster. But, being risk averse, design professionals have sought legislation to cloak themselves with “statutory immunity” in their role as a volunteer.

In the past three years, these types of bills have been introduced in New York, New Hampshire, Mississippi, and Ohio, with varying results. In the May 7, 2012 issue of The Zweig Letter, we addressed the topic of liability of design professionals when volunteering their services. (See “What Is Your Liability When Volunteering,” Issue 958, p. 7). The new legislation and our new U.S. Congress suggests that we revisit this topic to see what developments have occurred in the states and what might be accomplished at the federal level.

What is a Good Samaritan law? The name Good Samaritan comes from the biblical parable told by Jesus shortly after saying, “Love your neighbor as yourself.” In Luke 10:30-37, the parable tells of a man who was attacked by robbers, stripped of his clothes, beaten, and left half dead. A Samaritan stopped and took pity on the man, bandaged his wounds, placed him on a donkey, brought him to an inn, and took care of him. Jesus said at the end of the story, “Go and do likewise.”

The first Good Samaritan statute was passed in 1959 in California. Since then, every state has enacted some form of legislation to protect volunteers. These statutes are written to protect individuals from liability for negligent acts committed while voluntarily providing emergency care. As one California court put it, “The enactment of Good Samaritan legislation represents the resolution of competing interests. On the one hand, there is an interest in the vindication of the rights of the malpractice victim. On the other hand, there is the need to encourage physicians to render emergency medical care when they otherwise might not. Where applicable, the legislation favors the latter over the former.” There are wide variances in these laws, with some providing protection to a narrow class of individuals, such as licensed or certified medical professionals, while others protect a broader class of people.

Recent and current efforts. New York has been trying for at least three years to pass a Good Samaritan law for design professionals. The current 2017 bill is N.Y. Senate Bill No. 2243, which protects engineers, architects, landscape architects, and land surveyors from liability for personal injury, wrongful death, property damage, or other loss when such professionals render voluntary services, without compensation (other than reimbursement of expenses), at the scene of a natural disaster or catastrophe. The bill covers only “a declared national, state, or local disaster or emergency, whether natural or man-caused,” when the professional is working at the request of, or with the consent from, a public official.

The only conditions are that the professional was acting reasonably and in good faith within 90 days from termination of the declared emergency. The immunity does not apply, however, if the conduct was “wanton, willful, or intentional misconduct, or gross negligence.” A similar Senate Bill 2160 passed the Senate 60-1 in 2016 but failed to get a vote in the House.

Last year, in 2016, the Mississippi legislature considered House Bill No. 1317, titled, “the Good Samaritan Law for Architects and Engineers.” The bill would have granted immunity to design professionals volunteering in an emergency, however the time within which the immunity applied was shorter than proposed in New York, and was limited to just 30 days after declaration of the specific emergency. Unfortunately, the bill never got to a floor vote in the House and died in committee. A similar state Senate Bill 2369 also died in committee.

In 2015, two other states passed Good Samaritan laws for design professionals. The Ohio legislature passed House Bill No. 17 almost unanimously (96-1 in the House, and 31-1 in the Senate). The bill is broader than the two discussed above, and provides immunity not only to architects, engineers and surveyors, but to contractors and tradespersons who volunteer their services during a declared emergency.

The New Hampshire legislature passed House Bill No. 292 which granted civil immunity to licensed engineers and architects rendering assistance in an emergency in the absence of gross negligence or willful misconduct. The bill is limited to services that relate to “the structural integrity of the entire building or system or any portion thereof, or to a nonstructural element of the structure or system, affecting public safety.” Like the proposed New York law, the immunity does not apply to acts or omissions constituting gross negligence, or wanton or willful misconduct.

State laws vary greatly. The states that have passed Good Samaritan laws for design professionals are not uniform in who is covered, nor for what acts. The Alabama statute, Section 6-5-332(f), protects “any licensed engineer, licensed architect, licensed surveyor, licensed contractor, licensed subcontractor, or other individual working under the direct supervision of the licensed individual who participates in emergency response activities,” without compensation, if the volunteer “acts as a reasonably prudent person would have acted under the same or similar circumstances.”

The Illinois statute protects professional engineers, architects, land surveyors, and structural engineers from civil liability when they volunteer “during or within 60 days following the end of a disaster or catastrophic event.” In tornado-prone states like Kansas and Missouri, architects and engineers are immune from liability for negligent structural inspections performed voluntarily after a natural disaster. The Missouri statute extends protection to “construction contractors, equipment dealers and other owners and operators of construction equipment” for actions taken as emergency volunteers.

The Arkansas statute protects any “registered architect or professional engineer” who volunteers in a declared emergency except for wanton, willful, or intentional misconduct. In Colorado, state law similarly protects licensed architects or engineers who volunteer to provide architectural, damage assessment, engineering, or surveying services, respectively, at the scene of an emergency, but not for acts constituting gross negligence or willful misconduct. In Louisiana, licensed architects, professional engineers, and land surveyors are immune for “voluntary architectural, engineering, or land surveying services that occur during the emergency.”

Perhaps the broadest statute is found in Massachusetts, where the law grants immunity to licensed professional engineers, architects, environmental professionals, landscape architects, planners, land surveyors, or contractors, in addition to subcontractors and suppliers who volunteer in a natural disaster or catastrophe within 90 days of the end of the natural disaster or catastrophe.

Need for a federal law. As can be seen from the sampling of statutes mentioned above, this variance calls for a federal law that will provide blanket coverage nationwide, without so many differences. There have been efforts since 2007 to pass just such a federal law, but those efforts have failed thus far. In 2011, Congress considered H.R.1145, the “Good Samaritan Protection for Construction, Architectural, and Engineering Volunteers Act,” which would have provided “qualified immunity” for volunteers from the construction, architectural, and engineering industries who provide service in times of disasters and emergencies.

The bill died but was reintroduced in 2014 as H.R. 4246, but died again. Prior to 2007 and 2010, versions of the Act (H.R. 2067 and H.R. 5576, respectively) also died in committee without a House vote. Perhaps a renewed effort, with support from the professional associations such as AIA, NSPE, ACEC, and AGC, will result in passing this federal law under the new 115th U.S. Congress which has until January 3, 2019 to get the job done. With a Republican dominated Congress and a Republican president, this is the time to pass “tort reform” laws like this. No matter what political party you align with, we can all agree that this law would benefit design and construction professionals, in addition to the general public who need our help in an emergency.

William Quatman, Esq., is general counsel and senior vice president at Burns & McDonnell Engineering Co. He can be reached at
bquatman@burnsmcd.com.

Posted in Articles | March 6th, 2017 by