August/September 2012

No Good Deed...

Many PEs want to volunteer their services after disaster strikes. But without the right legal protection, the risk may be too great.

BY DANIELLE BOYKIN

No matter if damage is caused by an earthquake, a hurricane, a tornado,or a man-made disaster—professional engineers often feel a unique obligation to reach out to the affected communities by using their knowledge and skills to protect the public health, safety, and welfare. Following the catastrophic events of the September 11 terrorist attacks and Hurricane Katrina, design professionals stepped up to help with recovery efforts. However, lawsuits against architecture and engineering firms made it clear that Good Samaritan legislation is an essential part of protecting design professionals. PEs continue to volunteer their services to help the American public, while NSPE and engineering allies search for ways to enhance and expand legal protections for the profession.

NSPE supports professional engineers assisting emergency responders and local and state agencies by volunteering their expertise to analyze risks, evaluate damage, and assist with reconstruction efforts. The Society also supports the state-by-state need for insurance requirements, liability coverage, and the creation of Good Samaritan laws to protect all parties from frivolous lawsuits arising from volunteer services.

Currently, 23 states have some form of Good Samaritan legislation affecting engineers, according to research conducted by NSPE's Legislative and Government Affairs Committee. Some of these laws provide liability protections to design and construction professionals who volunteer during a declared local, state, or federal emergency.

Ensuring that professional engineers who volunteer during an emergency or disaster aren't exposing themselves to liability is an important goal for NSPE, says Ken McGowan, P.E., F.NSPE, a former member of NSPE's Legislative and Government Affairs Committee. Some of the states that have Good Samaritan legislation do not specifically address architects and engineers, he says.

Engineers and architects involved with the Missouri Structural Assessment and Visual Evaluation (SAVE) coalition inspected more than 6,300 buildings and structures in Joplin, Missouri following a deadly EF-5 tornado that devastated the town on May 22, 2011.

In McGowan's home state of Washington, Good Samaritan legislation provides liability protection to individuals who volunteer construction services. "It doesn't specifically mention architects or engineers, but it relates to their work when they volunteer to help during a natural or man-made disaster or emergency," he explains.

States with Good Samaritan legislation that sufficiently protects licensed design professionals can serve as a model for states that need similar legislation, says McGowan. Following Hurricane Katrina, the Alabama Society of Professional Engineers and other engineering groups worked together to secure legislation that grants immunity to volunteers providing services through emergency response organizations at the local, state, and federal levels for up to 30 days following an event.

"It typically takes two to three years to get this type of legislation passed. You need to have a lot of staying power behind your efforts," says McGowan. "This requires getting bill sponsors, testifying at committee hearings, and contacting individual legislators to explain the importance of this legislation."

National liability protection for engineers who volunteer during a large-scale man-made or natural disaster is critical as well, says Warren Maddox, P.E., F.NSPE, vice chair of the Legislative and Government Affairs Committee. He recalls how Hurricane Katrina devastated Louisiana and Mississippi. Some professional engineers lost not only their homes, but also their businesses. "They were not able to turn around and respond to the engineering efforts that needed to take place because they were concerned about their own personal lives," he says.

Maddox adds, "If the engineers in the affected areas are trying to get their own lives back in shape, then professionals from other states will have to step in. Without some type of national legislation to protect folks going across state borders, they are going to be less likely to volunteer."

U.S. Representative David Reichert (R-WA) introduced the Good Samaritan Protection for Construction, Architectural, and Engineering Volunteers Act in 2011. The bill (H.R. 1145), supported by NSPE, provides construction companies and A/E firms and their employees immunity from liability for negligence (except for gross negligence or willful misconduct) when volunteering emergency assistance in response to a declared emergency or disaster and without expectation of compensation. The legislation currently sits in the House Judiciary Subcommittee on the Constitution.

"NSPE can rally the troops with other engineering organizations to help push this legislation," says Maddox. "We need all of the local and state chapters to keep this legislation alive and moving through Congress."

A Grassroots Push
In 1989, Hurricane Hugo caused serious widespread damage and numerous fatalities in South Carolina. The category four storm was a costly predecessor to Hurricane Katrina. The state hasn't experienced an event of that magnitude recently. Yet, professional engineers in South Carolina know that it's only a matter of time before a similar event will happen again. However, will PEs put themselves legally at risk to volunteer following the next major disaster?

For some time, the South Carolina Society of Professional Engineers has attempted to get liability protections for professional engineers who volunteer during emergency and catastrophic events. The organization's push for a bill, however, never gained traction in the state legislature. With the election of three licensed engineers to the South Carolina General Assembly over the past few years, South Carolina SPE Executive Director Joe Jones knew that he could reach out to legislators who understand the importance of PEs in protecting the public health and safety. "I approached them this year and said, 'It's time,'" he says.

In 1989, nearly 300 engineers spent weeks volunteering to help with recovery after Hurricane Hugo. These engineers were focused on helping their state to recover, say Jones. "None of us were really concerned about liability," he recalls. "We were concerned about getting South Carolina put back together." Times have changed. Jones' testimony to the Assembly House subcommittee clarified how critical the passage of legislation is to professional engineers and the public. Unless South Carolina passed this legislation, he would not advise any engineer, in good conscience, to volunteer after a disaster without protections.

Securing passage of a Good Samaritan law in South Carolina was not an easy road to travel. Jones attributes persistence and a strong grassroots push by PEs in the state. Legislation (S.1137), known as the Architects' and Engineers' Volunteer Act, was signed by Governor Nikki Haley in June. The law provides immunity to licensed design professionals who, at the request of the governor, volunteer engineering services at the scene of a declared national or state emergency. Immunity lasts for 30 days following the event. A licensed engineer providing these volunteer services can't be held liable for any civil damages in a lawsuit unless there is evidence of gross negligence or recklessness.

'Our Nightmare Scenario'
The lack of or insufficient Good Samaritan legislation has not stopped professional engineers from adhering to a higher calling and volunteering in times of need. Benjamin Ross, P.E., joined the Missouri Structural Assessment and Visual Evaluation (SAVE) Coalition 10 years ago. Engineers and architects in the organization assist the state's emergency management agency with building inspections following disasters. The opportunity to put his knowledge into action came after the deadly EF-5 tornado that devastated the town of Joplin on May 22 of last year. "I heard about a tornado hitting that area of the state that night, and then I went to sleep," says Ross, a SAVE board member. "I woke up the next morning to the national news reporting that more than 100 people were killed."

Ross deployed with the SAVE Coalition four days after the event to inspect the structural integrity of more than 6,300 buildings and structures over a period of three days. The news coverage did not prepare him for the magnitude of the damage he saw when he arrived on the ground. "Looking as far as the eye could see, there were destroyed houses in both directions," he recalls. "The television coverage just does not give a full perspective of that kind of [event]."

As bad as the Joplin tornado was, Ross knows that the future could bring worse. In 1811, the first in a series of powerful earthquakes generated in the New Madrid Seismic Zone shook towns and severely changed the topography of the southeast corner of Missouri. The subsequent earthquakes, which occurred into 1812, could be felt as far east as Boston. "That type of earthquake could happen again, anytime. It will be devastating to the older buildings all along the eastern side of Missouri," says Ross. "That's our nightmare scenario."

In preparation for an earthquake, the SAVE Coalition is training engineers to inspect these buildings and to become managers in large-scale deployments. The organization is always recruiting engineers with design and construction experience, primarily civil and structural engineers, in addition to electrical, geotechnical, and mechanical engineers.

SAVE Chairman David Weber, P.E., is no stranger to what he calls "mega-disasters." He spent two weeks in New York immediately after the September 11 attacks to aid with urban search and rescue response as part of a Missouri Task Force One deployment. He also served on the FEMA Incident Support Team in New Orleans dealing with the aftermath of Hurricane Katrina and most recently on Task Force One with the Joplin recovery.

Weber understands how critical it is for design professionals to have liability protection. "If you came out as an individual asset on behalf of a local fire department and it's not a state deployment through a group like SAVE or through FEMA, all of a sudden you're on your own," he says. "If you're not deployed through a sponsoring agency, you really don't have that umbrella of protection."

Liability protection is an essential part of any post-disaster volunteer building inspection program, says Ross. A Missouri statute provides licensed design professionals immunity if they volunteer their services under a Missouri state emergency management agency program, such as the SAVE Coalition. "I think it's unfortunate that in today's overly litigious society that engineers need liability protections to help their neighbors when they are in need," he adds.

A Firewall
NSPE state societies have worked to connect their members with state and local agencies as the best means of providing services and securing liability protection.

Following the September 11 terrorist attacks, Pat Jenkins, P.E., and several other members of the South Carolina SPE's Piedmont Chapter discussed how professional engineers had the expertise to deal with critical infrastructure following a man-made or natural disaster. In 2002, the creation of the South Carolina Society's Volunteer Engineer Corps was put into motion.

Jenkins soon realized that establishing a volunteer program required buy-in from engineering firm leaders. They wanted to allow their employees to participate in this type of organization, but only if it addressed their concerns about liability. "They said, 'You've got to be able to build a firewall. If one of our engineers is involved in this program and a liability is created, it can't follow our employee back into the company,'" he recalls. "That was heard loud and clear."

Placing the volunteer corps under the direction of the Greenville County Sheriff's Office, which needed access to engineers during emergency and disaster relief situations, alleviated the Society's concerns over liability. As part-time employees of the sheriff's department, up to 20 engineers involved in the corps from the Piedmont Chapter are provided general and professional liability through the county. The corps is restricted to volunteering in the department's jurisdiction, unless directed by the office of emergency management.

It took two years for the Volunteer Engineer Corps to arrange the necessary agreements and to establish operating guidelines. Jenkins believes that when the remaining local chapters establish their own volunteer corps, the professional engineering community will have established the redundancy that is needed. "If a serious disaster were to hit Greenville County, all of us would be victims," he says. "We need to be able to contact another volunteer engineer unit to come in and take our position because we will be busy looking after our families, businesses, and homes."

George McCall, P.E., chair of the Volunteer Engineer Corps, believes that the expertise voluntarily provided by professional engineers is priceless to the government entities that are dealing with tight budgets and limited human resources. After a heavy rainstorm produced severe flooding in the western part of Greenville County a few years ago, county officials realized the importance of having a volunteer corps to assist them with recovery efforts. "Our building department needs design professionals who are ready to assist them with inspecting commercial buildings," says McCall, a licensed fire protection engineer and retired fire marshal. "This allows their inspectors to concentrate on residential property and speed up the process of evaluating commercial buildings."

The Volunteer Engineer Corps has been helpful in recruiting young PEs to join NSPE because they want to be involved with this type of community service, says McCall. However, he stresses that engineers who volunteer with similar organizations should realize that they will not take the lead during emergency responses. In addition, the corps shouldn't be designed to put fellow professional engineers out of business. "We have a lot of people that want to run with the sirens from one event to the next, but that's not what we do," he says. "We go in when we are needed. We don't take over. We are just a tool."