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November 8, 2005 - ASCE Statement - liability relief for engineers performing pro bono work during natural disasters

The Impact of Certain Government Contractor Liability
Proposals On Environmental Laws
Statement of the
AMERICAN SOCIETY OF CIVIL ENGINEERS
Before the
Subcommittee on Superfund and Waste Management
Committee on Environment and Public Works
U.S. Senate

November 8, 2005

Mr. Chairman and Members of the Subcommittee:

The American Society of Civil Engineers (ASCE)* is pleased to offer this statement for the record in support of S. 1761, the Gulf Coast Recovery Act of 2005, a bill that would clarify the liability of government contractors assisting in rescue, recovery, repair, and reconstruction work in the Gulf Coast region of the United States affected by Hurricane Katrina or other major disasters.

We believe the bill is a good start toward enacting a broad-based federal “Good Samaritan” law to protect professionals who engage in disaster recovery efforts at great potential cost to themselves. As of now, 21 states have Good Samaritan legislation to cover those who
respond to natural disasters and other emergencies. Louisiana, Mississippi, Alabama, and New York do not have Good Samaritan legislation at all. And we are not aware of any state laws that protect those who would aid in the recovery from terrorist attacks or the aftermath of such attacks. When professional design and construction expertise is needed, there should be no legal impediment to our members’ responding to provide help and possibly saving lives.

ASCE encourages its members, as individuals, to provide pro bono expertise and professional services to charitable causes and those in emergency situations. Members who provide professional services pro bono for ASCE-endorsed programs are covered by the Society's liability insurance.

But pro bono services provided by an individual in emergency situations or to charitable institutions outside of ASCE's endorsed programs are not covered by the ASCE liability policy. The engineer, in emergency situations, may be called upon to make decisions with little or no opportunity for study, evaluation, or even identification of alternatives and should not be held to the same standard of care that would be used in evaluating her actions under normal circumstances. Legislation is needed to protect the engineer under these circumstances.

Engineers have the technical ability to assist in emergency situations. Protection as proposed in S. 1761 rightly would not relieve the engineer of responsibility to act in accordance with the ASCE Code of Ethics. The engineer must continue to act within his appropriate level of expertise, with due recognition of the limitations of that expertise. 

Finally, the U.S. legal system has evolved to a point where excessive litigation, including frivolous lawsuits, often occurs. Moreover, findings of liability increasingly bear no relationship to the proportion of fault in a case, and astronomical damage awards for unquantifiable claims are frequently granted.

The enormous growth in litigation against businesses and professionals, coupled with excessive and unreasonable jury awards, has led to dramatic increases in insurance premiums, reduced policy coverage, and even outright cancellations of professional liability insurance coverage.

A growing number of professional engineers, including those with little or no history of litigation ever brought against them, have found that professional liability insurance is a substantial cost of doing business. In addition, efforts to advance innovation, new products and designs are inhibited by the current legal climate.

ASCE is very concerned about the adverse economic impact of the nation's litigation crisis and escalating liability insurance costs on the civil engineering profession. These adverse economic impacts affect the availability and affordability of professional liability insurance needed for the orderly and responsible conduct of business, including engineering services, in the United States.

Mr. Chairman, ASCE thanks you for your efforts. Please do not hesitate to call on us for assistance with this important legislation.