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02/27/2014

'Good Samaritan' immunity bill amended to include contractors with A/Es

Legislation extending civil immunity to engineers, architects and surveyors who volunteer their services in response to natural disasters was amended last week to cover construction contractors, as well.

The House Commerce, Labor & Technology Committee on Wednesday voted to add contractors to House Bill 379 following testimony from representatives of the Associated General Contractors of Ohio (AGC) and the Ohio Contractors Association (OCA).

A final vote on the bill was deferred, however, pending resolution of questions raised by a representative of a state association representing trial attorneys.

Committee Chairman Rep. Ron Young (R-Leroy) said he’d extend the vote by one week after concerns were raised that the measure doesn’t include language that would hold a volunteer responsible if work subsequently performed for compensation by that volunteer was later found to be defective.

Andrea Ashley, vice president of government relations for AGC, told the committee that when a tornado that ripped through Lake County and destroyed Lake Local School buildings in 2010, it wasn’t just architects who came to assess the damage. Rather, a commercial contracting business voluntarily took the lead on building a crew and working to assess damage and clean up debris.

“Construction companies do the right thing when facing disasters and emergencies by bringing equipment, knowledge and people to the affected area,” Ashley said. “They volunteer their knowledge and resources to help people and want to be able to contribute in the same way in the future. The fear of lawsuits should not make construction contractors hesitate, or decide not to assist, in times of need.”

Angela E. Van Fossen, the director of legal affairs for the OCA, also asked the panel to favorably consider the same amendment.

Rep. Bob Hagan (D-Youngstown) asked if the “Good Samaritan” measure would protect an architect or builder if, for example, a bridge that was built following an emergency fell down and caused fatalities years later.

“Something could happen 15 years out that would be devastating and it would seem to me that this bill then would hold everyone harmless except the victims,” he said.

Van Fossen said she couldn’t imagine a situation where a major project would get underway in the immediate wake of a disaster. Instead, the volunteers would help to offer immediate assistance with removing debris and would provide temporary solutions to construction problems.

Young agreed with the witness. “I can’t imagine a situation where there is an emergency and someone would do something as complex and permanent as building a bridge,” he said.

Rep. Al Landis (R-Dover) said he thinks that anything that would be considered permanent construction would have to meet local and state building codes and standards.

Ashley said there are already state laws that dictate the building process following an emergency. She said if a permanent project were to get underway, a contract would be involved, but emergency codes in state law allow an affected area to forgo a competitive bidding process.

Because the measure only protects those who are doing volunteer work without a contract, she said any business or employee completing work on a permanent project would be held liable under the terms of a contract because they’d be getting paid for their services.

Ashley said it’s unlikely to expect a business would complete work on and provide materials for a permanent structure on a voluntary or donor basis.  “They’re Good Samaritans, but they’re also in business,” she said.

John Van Doorn, an attorney with the Ohio Association for Justice, said it’s possible that contractors or architects could design a permanent structure on a volunteer basis and even if they were contracted and paid to eventually complete the project, they could still be potentially protected from future liability.

He said if a bridge collapsed that was conceived or designed during an emergency, “a clever or smart defense attorney would claim that that design enjoyed immunity because it was conceived during that time.”

Doorn said that “it is a stretch, but it is possible,” for the builder or architect to win a lawsuit on that basis. He said if given a few days, he could create new language to be added to the bill.

“I’m supportive of the bill, but I’m also looking forward to making sure we don’t have a problem at a later date,” Hagan said, adding that he’d also like to craft an amendment to the measure.

Bill sponsor Rep. Louis Blessing (R-Cincinnati) said he wouldn’t oppose an amendment that would more clearly define for what volunteers are and aren’t liable.

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