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Policy Statement 536 - Emergency Responder Legislation

 
Approved by the Infrastructure and Research Policy Committee on April 10, 2020
Approved by the Public Policy Committee on May 4, 2020
Adopted by the Board of Direction on July 11, 2020

Policy

The American Society of Civil Engineers (ASCE) supports federal, state, and local emergency responder legislation to prevent lawsuits against engineering entities (individual engineers and engineering businesses) for on-site conditions that are entirely outside their scope of work or control and which also recognizes the intense and time-sensitive decision-making process required during the emergency response period.

Issue

Only unpaid volunteers are protected from liability by Good Samaritan laws for work performed during declared state or national disasters. Those persons or entities who are hired to provide services are not protected by Good Samaritan laws. In contrast, Emergency Responder Legislation is designed to protect those who are hired to provide services in response to disasters. Emergency Responder Legislation provides engineering entities protection from lawsuits aimed to make those engineering entities responsible for activities outside their scope of work, or their scope of professional services,; and protection from lawsuits related to decisions that are made based on limited information and limited time during the disaster emergency response period. 

Engineering entities are often relied upon in times of disasters and emergencies to offer expertise and assist public officials in mitigating the effects of disasters.   Engineering entities may assess the safety of structures that emergency responders such as police officers, firefighters, and other rescue workers need to enter. Engineering entities also mitigate conditions that threaten life and property.

Engineering entities have answered these calls for assistance and expertise following natural and man-made disasters. Their work is performed in challenging conditions with limited information and without the benefit of ample time to fully evaluate the condition of buildings and other infrastructure elements. Engineering entities have played a vital role in recovery efforts, whether they worked as volunteers or paid contractors.

Not all states have Good Samaritan laws that grant immunity to engineering entities who provide volunteer emergency services during a disaster. This immunity varies from state to state and can include only protection from liability for wrongful death to a more encompassing removal of liability including personal injury and property damage. The duration of this immunity also varies from 30 days after the event up to an undetermined time when response to the event has concluded.  Engineering entities must be working in partnership with some type of public safety officer at the state, local or national level for these rules to apply. In some states, immunity can only be provided during predetermined natural disasters such as earthquakes and floods. In comparison, all 50 states and the federal government have enacted laws protecting other first responders.  What is needed is Emergency Responder legislation that will protect civil engineering entities that are hired to provide services in response to disasters.

Rationale

Emergency Responder legislation will create conditions that ensure engineering entities will be willing, available and able to respond to future emergencies without fear of assuming unwarranted liability.  The engineering community is committed to public safety and professional integrity, but their responsibility to the public can only extend to the areas in which they are knowledgeable. Litigation regarding alleged health effects from work at Ground Zero - described below - may discourage engineering entities from aiding in future catastrophic situations where their expertise could be necessary and essential. ASCE promotes common-sense adoption of Emergency Responder Legislation so that engineering entities in the United States will be inclined to provide necessary expertise without the threat of unwarranted litigation.

One example of an inequitable lawsuit is the litigation against structural engineers arising out of the rescue, recovery, and debris removal operation in the aftermath of the 9/11 terrorist attacks on the World Trade Center (WTC). The immediate response by the engineering community in providing structural consulting services at Ground Zero contributed to perhaps the largest recovery and site cleanup in modern history.  Structural engineers were hired to assess the structural stability of the surrounding buildings and the massive debris pile that in areas reached the height of a ten-story building. The engineers performed this task successfully as no serious injury or fatality was ever linked to their work at the WTC Site. Unfortunately, there are were numerous lawsuits against these engineering entities that did not pertain to their work as professional engineers, but rather, were based on claims by a significant number of plaintiffs who alleged illness due to purported toxic exposures. Structural engineers should not be implicated in these lawsuits, as issues of air quality or claimed toxic exposures are outside of the engineers' scope of work or expertise.

ASCE Policy Statement 536
First Approved in 2011



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