During emergencies, design professionals are often willing to volunteer their services to assist in protecting public health and safety. Prudent design professionals realize that these efforts, whether volunteer or paid, create potential liability.
While some states have volunteer protection acts that afford the immunity of the state to licensed designed professionals providing services during emergency situations, many do not. Without such immunity, a design professional would be responsible for meeting a standard of care of similar professionals in similar circumstances. Although the standard of care expected during an emergency situation would be lower than under normal circumstances, design professionals should consider taking additional steps to protect themselves from possible claims. Some of those steps are listed below:
- Be certain to clarify that any determinations made during the emergency are based on information available at a specific time and represent a professional opinion. Avoid “absolute” statements regarding structural integrity, habitability, or safety.
- Add specific contractual provisions to your standard professional services agreements that clearly identify the scope of services and the limitations of those services based upon the conditions encountered.
- Obtain a waiver of liability and/or a limitation of your liability from your client, whether the client is a state agency or a private party. Also, obtain defense and indemnity protections for claims arising out of your professional services.
Remember that the interpretation and enforceability of indemnity provisions depends upon the jurisdiction, statutes, and case law, and there are significant differences on how different jurisdictions interpret and enforce indemnity provisions. Accordingly, we encourage consultation with knowledgeable legal counsel when reviewing or drafting indemnity provisions. For sample language that you may wish to review with your attorney, please refer to our Management Advisory “Providing Services in Emergency Situations” (password-protected for current policyholder and broker access only).
Lastly, remember that performing services pro bono does not reduce the obligation to use due care. You may want to review my blog entry of June 19, 2014: “If you provide services for free, are you free from liability?”