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4 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 ar- chitects, and land surveyors from liability for personal in- jury, 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 pro- fessional 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 termina- tion of the declared emergency. The immunity does not apply, however, if the conduct was “wanton, willful, or in- tentional misconduct, or gross negligence.” A similar Sen- ate 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 dis- cussed above, and provides immunity not only to archi- tects, engineers and surveyors, but to contractors and tradespersons who volunteer their services during a de- clared 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 ab- sence 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, af- fecting 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 stat- ute, Section 6-5-332(f), protects “any licensed engineer, licensed architect, licensed surveyor, licensed contractor, licensed subcontractor, or other individual working un- der the direct supervision of the licensed individual who participates in emergency response activities,” without compensation, if the volunteer “acts as a reasonably pru- dent person would have acted under the same or similar circumstances.” WILLIAM QUATMAN, from page 3

The Illinois statute protects professional engineers, archi- tects, 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 natu- ral disaster. The Missouri statute extends protection to “construction contractors, equipment dealers and other owners and operators of construction equipment” for ac- tions taken as emergency volunteers. The Arkansas statute protects any “registered architect or professional engineer” who volunteers in a declared emer- gency except for wanton, willful, or intentional miscon- duct. In Colorado, state law similarly protects licensed ar- chitects or engineers who volunteer to provide architectur- al, 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, land- scape 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, Architec- tural, and Engineering Volunteers Act,” which would have provided “qualified immunity” for volunteers from the con- struction, 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 ef- fort, 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 Republi- can 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 profession- als, 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.

THE ZWEIG LETTER March 6, 2017, ISSUE 1190

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