Relate the essential elements that must be proved in order to show liability. List the most common causes of lawsuits against emergency responders.

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1 Legal Issues in Search and Rescue Response By Patrick "Rick" LaValla and Norman Lawson OBJECTIVES Discuss the basic issues of liability in SAR response. Relate the essential elements that must be proved in order to show liability. List the most common causes of lawsuits against emergency responders. INTRODUCTION Bad News: Lots of litigation is being attempted (Count On It!). Better News: Only a few attempts get to court. Good News: To date, most plaintiffs do not win. Basic Questions: 1. "Can a government agency (Sheriff's Office, National Park, etc.) be held liable for injury or death caused (or made likely) by its failure to eliminate/reduce known SAR hazards and/or its failure to respond to SAR incidents quickly and efficiently? 2. Can a non-paid SAR organization be held liable by its failure to respond quickly, efficiently, and deliver an adequate "standard of care"? Answer: Yes, the public and courts expect professionals (whether paid or not) to use the highest standards. LEGAL FACTS OF LIFE

2 The SAR response network is a "deep pocket." Reoccurring SAR response mistakes are documented by researchers. SAR incidents in all environments have increased, and usually gain immediate media attention. Government's sphere of influence has been increasing. The numbers of lawyers has increased. The "act of God" is disappearing as a defense. The media and general public have become more aware of government's role(s) in SAR, and are expecting results. - There is an implied guarantee that government "knows what it is doing. - The public has been conditioned by television and movie programs to expect positive results from searches and rescue missions because programming depicting search, rescue and emergency operations rarely portrays unsuccessful operations. Non-paid (volunteer) SAR organizations often act as agents for the responsible government agency. Individuals can incur personal liability for improper actions. SAR organizations and their officers may have liability for the acts or omissions of those whom they supervise. Through the doctrine of vicarious liability, organizations and their officers can be held liable, under certain circumstances, for damages caused by members of the organization. UNDERSTANDING THE LAW AND THE PROCESS THE PROVISION TO HAVE SAR BRINGS A DUTY TO SAR.

3 Duty of a responsible agency to be contactable by phone and radio. Duty to perform a timely response. Duty to adequately respond when needed. Duty to do what is "reasonable" in specific situations. Some state statutes assign the duty to provide SAR services to the sheriff or some other agency or officer. In these instances there may be a right to SAR services thus creating an additional burden on the person or organization named in the law. NOTE: Reasonableness is determined by circumstances: Foreseeability of injury. Cost/benefit versus inaction. Both may be determined after injury and death have occurred. Civil suits are private legal actions brought to court by plaintiff(s) who believe they have been harmed by the person being sued (defendant). - Goal of civil suit: monetary compensation for the harm. The plaintiff has the burden of proof and must prove that: FAULT CAUSED DAMAGE A plaintiff's lawyer will have to show: A duty to the plaintiff.

4 A standard of care. Violation of that standard of care. Foreseeability of injury/damage/destruction. (Unless a statute or regulation sets a standard which must be obeyed. In that case foreseeability may not be required). Injury/harm proximately caused by violation of established standard of care. TYPES OF FAULT (DEGREES OF NEGLIGENCE) Slight Negligence: A failure to act perfectly, or just being human. Even slight negligence may be grounds for liability if there is a resulting injury to a person or to property. There are some who would argue that this is like being slightly pregnant. Negligence: - The doing of something which a reasonable and prudent person would not have done. - Failure to do something which a reasonable and prudent person would have done. - The creation of an unreasonable risk of harm toward a third person. A reasonable and prudent person in a SAR situation is a person trained to the level which they claim to be trained or to which they should have been trained if the organization was providing and requiring proper training. Thus, a standard first aider rendering first aid will be held to the level of standard first aid, an EMT to the level of an EMT, etc... Gross Negligence: A deliberate act or omission, or a great departure from proper standards of care.

5 Negligence Per Se: An act or omission done in violation of a statute or regulation which results in harm to a person or property. In this case the statute sets the standard of care and it is not necessary to prove another standard of care in order for there to be liability for the act or the omission. Bad Intent: Conduct which is malicious, willful, wanton. Remember, you do not get a jury of your peers; you get a jury of "folks." They will investigate your prior experience, knowledge, and why you did not know of new methods, techniques. Questions: Was there a duty? In the process, did you injure the victim? Were there improper techniques? Did you act in good faith? Were you working for the victim? Were the victim's best interests always the goal? Did you do all that you could reasonably do? And, did you document it? HOW AND WHY LAWSUITS OCCUR These factors are the primary causes for negligence: Appointment. Failure to check a person membership, or assignment to a task (Check qualifications!). s background and qualifications prior to employment,

6 Retention. Keeping a person in a job or position which he or she has proved he or she cannot do, once that discovery is made, or should have been made. (You must get rid of the people who can t do the job!). Assignment. Assignment of a person to a job which he or she cannot do, for which he or she is not qualified, or is untrained (Don t let persons do things which they are unqualified to do.). Entrustment. Ordering or permitting a person to use some piece of equipment or device for which he or she is not trained, or does not know how to use, or cannot use properly (Provide adequate training.). Training. Not providing training for personnel according to their duties, assignment, work task, rank, equipment used, or otherwise. Providing sloppy or inadequate training (Do it and do it right!). Supervision. Permitting personnel to act in an unsupervised manner at any time or under any condition where supervision is needed (You must provide the supervision!). Direction. Failure to have rules and regulations, standard operating procedures, instructions, guidelines, and the enforcement of same, which relate to the operation of the organization and the conduct of its activities (You must provide direction!). Documentation. Failure to properly or completely document all activities such as searches, training, equipment inspections, etc. (Document everything completely!). Operation of Emergency Vehicles. This is the cause of more lawsuits than actual emergency operations --(Drive carefully! Follow the state emergency vehicle laws; Remember that lights and siren do not provide the right-of-way, they just ask for it; Give an opportunity of other persons to yield or get out of the way and be especially careful at intersections.). Selection, Maintenance and Use of Equipment. Use of damaged or defective equipment, failure to have a program to inspect equipment to see if it is damaged or defective, failure to have required equipment -- (Have a program to inspect and maintain it. Also get proper training on how to use it).

7 All of these can cause liability! Government officials, responders "may be" free from liability if: 1. There was no malice. 2. They were acting in their official capacity. 3. They were acting within their scope of authority. 4. They were acting reasonably and prudently. SOME THOUGHTS ABOUT THE USE OF NON-PAID (VOLUNTEER) RESPONDERS NOTE: Most non-paid SAR units are highly trained and organized, but from a local government or land management agency viewpoint, consider the following: Some control will be lost by delegation of responsibility to non-paid (volunteer) groups. Good, experienced leadership could be lacking within the non-paid (volunteer) unit. Response time by non-paid (volunteer) groups may not be adequate. Who provides the liability coverage when non-paid (volunteer) groups are used? What happens if the responders are injured or killed? THE BOTTOM LINE: You (officials, responders) are charged with responsibility to respond "reasonably and effectively". The difference between "proper response" and "sloppy response" relates to preplanning and response development. Prevent future legal problems by:

8 Developing your own "standard of care" through planning and training; Consider shortages of time, space, equipment, supplies, manpower that are inherent in emergencies. Do not make promises you cannot keep like standards you cannot live up to with unreasonable standards of care, mission statements, standard operating procedures, equipment lists, or other documents. WHAT ABOUT GOOD SAMARITAN LAWS? It is generally held that SAR persons lose this protection when they volunteer their time and efforts as part of a "planned response" under the "color of the law" such as an official SAR mission. Many state (or country) Good Samaritan laws do not protect all responders. All Good Samaritan laws only protect persons under specified situations. Many do not apply if charges are made for services rendered, or if there is willful or wanton misconduct on the part of the person rendering the aid. It is essential to check to see if your state s (or country s) Good Samaritan law will protect you and when. A Good Samaritan law may not keep a person from getting sued. It simply changes the standard of care if the defendant is actually covered by the law. By volunteering to go to the scene of an emergency, SAR persons assume a legal duty to give the victim reasonable care and not to increase the risk of harm or cause further harm which leaves the victim worse off than he/she was before receiving any care. If the SAR person breaches that duty, he/she can be held personally liable for civil damages. SAR SUITS (LAW, NOT 3-PIECE) Note: The following has been provided by the SAR Legal Guru Norm Lawson. Norm has written numerous essays and white papers on how to avoid legal problems for SAR,

9 emergency response and management. For copies write to: Norm Lawson, 753 Woodland Ave., Frankfort, KY Searchers, rescuers, medics, team leaders, and organizations have been sued for various reasons, but among the more common or more interesting are: Having wrecks with emergency vehicles. This is the leading cause of lawsuits against emergency agencies and personnel. Dropping the victim. This can range from dropping the victim off the litter, dropping the victim while hoisting into helicopter, victim falls from litter during helicopter lift, or to accidents during hoisting or lowering operations which injure the victim or kill the victim. Not starting the search or rescue effort soon enough. Generally in this scenario, delay causes the victim to die, be injured further, or otherwise suffer from the delay. The claim is, if the victim had been found or rescued promptly the injury or death would not have occurred. If a rescue cannot be accomplished immediately, not doing at least something for a known victim in a known location. In this situation, the victim has been located, generally by air, but the rescuers are unable to access him promptly, and do not airdrop survival equipment or personnel to assist him, and as a result thereof, the victim s injuries are worse, or the victim dies. Improper medical treatment for victim. The victim is injured or dies because of the medical care given, or not given. Typical are unrecognized or improperly treated neck, head, or spine injuries, heat and cold problems, dehydration, etc. Authorities in charge of the rescue refuse to call or deny participation to properly qualified rescuers. In this situation, due to false pride, organizational jealously, or other reasons, the services of properly qualified personnel or teams are rejected or are not called even through they are available and may have actually volunteered to assist. The victim dies or suffers injury because those in charge cannot do the search or rescue (or both) in a timely and efficient manner.

10 Equipment failures and other problems. The rope breaks, the ascender, descender, litter, or some other piece of equipment fails and the victim is injured or killed. Generally in such situations there is no adequate backup or safety redundancy built into the system used thus contributing to the problem. Failure to follow the plan or SOP of record. In this situation the plan calls for doing a certain thing or using a certain procedure, it is not used or is improperly used, and the victim is injured or dies. US government agencies and the military have been particular victims of this when the National Search and Rescue Plan was not utilized or was violated. In the cases the plan or SOP establishes the standard of care, and if the lowered standard used causes injury then liability may attach. Lack of communication and general foul-up s. In one case the rescue agency involved in a mountain SAR incident thought that the people had rescued themselves and come off the mountain -- they hadn t. The rescue agency allegedly suffered miscommunication in the incident thus causing the search to be called off and worsening the plight of the victims. Record keeping problems. In many cases the rescuers have acted properly but have not properly documented what they have done, thus placing them in the position of later having to defend against something which they may or may not have done. In one case an inebriated individual fell off a cliff. His friends (also tipsy) climbed down the cliff to the unconscious victim and placed him in a sitting position, thus causing paralysis. The rescue team treated the victim properly but did not note in their in report the position in which the victim was found. Since the victim was unconscious during the rescue a legal doctrine called res ipsa loquitur was applied to allow a suit against the rescue team for negligence. The suit was dismissed only after the partners admitted to moving the victim who had been moving prior to the arrival of his friends. This movement was determined to have caused the additional injury, and not the actions of the rescue team.

11 FOR FURTHER INFORMATION AND DIALOGUE Contact Norman Lawson, 753 Woodland Ave., Frankfort, KY, 40601, USA or contact him through the International SAR Alliance website end