Superstorms such as Sandy and Irene impacted the daily lives of the people who lived through them and the destruction of property totaled in the billions of dollars. Today, design professionals are faced with a new concern arising from these superstorms: whether to provide voluntarily professional services in aid for rebuilding efforts.
Luckily, professional liability claims related to Sandy have been minimal, so far. If designers were code compliant they should be successful in defeating negligent design claims. On the other hand, it is a sad but true fact that volunteering to help rebuild may open up design professionals to possible civil liability claims under the pseudo-legal principle that “no good deed goes unpunished.” And, most design professional liability insurance policies do not cover “free” or “volunteer” work.
Some states have passed Good Samaritan laws that limit civil liability for architects and engineers who volunteer their services to help rebuild destroyed businesses and homes. However, other states, including the two that were the most harshly affected by Sandy, New Jersey and New York, have not enacted such laws to protect architects and engineers from civil liability for their voluntary performance of services.
Bottom line: unless a state has a Good Samaritan law, it is safer not to risk potential liability by volunteering professional services. It may be the civic-minded thing to do, but not the safest.
After large natural disasters, government’s response is often to enact stricter building codes to help minimize damage “next time.” Resiliency in materials and construction rather than green design is usually one of the main concerns when enacting post-disaster building code amendments. Design professionals should check with their local regulatory agencies to determine whether ongoing work will be grandfathered in or if they need to apply the stricter codes to their projects.
One of the best ways to limit liability before another superstorm happens is to review and tighten up design contracts. Don’t fall into the trap of “wearing too many hats.” Combining the design and construction phases in design contracts may open up design professionals to liability. Accurately defining the scope of the work and adding limitation of liability clauses may help to reduce design professionals’ liability from future storms. Planning ahead may cost a little on the front end, but it could save design professionals from a liability “storm.”
Special thanks to my “blog savvy” colleague Josh Grajewski (Wilson Elser-Philadelphia) for his contribution and assistance.