§ 97.003.Limit on Liability of Construction Monitoring and Inspection Services

The companion provision for the people who watch the work rather than do it.

The section applies to a business entity, its officer or employee, or an engineer providing services as a consultant or subconsultant of the department to monitor and inspect the progress of work on a transportation construction or maintenance project performed by a private contractor, and to report on the contractor's compliance.

Such a person is not liable for personal injury, property damage, or death arising from an act or omission in the course and scope of those duties, if both:

(1) the person does not have authority to direct the operations of the contractor and had no control over the construction means, methods, techniques, sequences, or procedures, the safety precautions or programs, or any other person performing the work; and (2) the person substantially complied with the obligations under the contract.

The control test is the same idea as the property owner provision for independent contractors — a person who does not control how work is done is not answerable for how it was done.

"Complied with the obligations under the contract" is defined as performing the required monitoring and inspection and notifying the department of any unsafe condition or operation the person becomes aware of in the normal course.

So the inspector must report what it sees. The protection is for someone who did the job, not someone who stayed silent.

Subsection (d) excludes gross negligence and wilful or wanton conduct.