1 CHAPTER 11 LIABILITY IN EMERGENCY MANAGEMENT John C. Pine Professor-Research, Institute for Environmental Studies, Louisiana State University, Baton Rouge, Louisiana 11.1 INTRODUCTION For many years, states and their local governmental units enjoyed extensive freedom from civil claims or suits seeking financial compensation for the acts of governmental agencies, officials, employees, or volunteers. This protection or immunity was based on a belief that neither the King nor his representatives could do any wrong. The King as sovereign was thus immune (sovereign immunity). This concept of protecting the state and its representatives from civil claims was adopted in the United States. Under this doctrine, individual citizens or businesses harmed by the actions of state or local agencies and their representatives are prohibited from recovering damages from the government. Under sovereign immunity, those harmed by a governmental unit could only recover if the public entity voluntarily recognized the claim and agreed to pay. The effect of sovereign immunity was that public jurisdictions were immune from suit (Reynolds, 1982). From the early 1960s through the mid-1980s, the law in each state changed, making state and local governments more accountable for their actions. The law was changed either by the state legislatures, by decisions of the state courts, or by changes to the state constitution. Today, sovereign immunity no longer provides total protection for state and local public officials, employees, and volunteers. State law, usually in the form of a state tort claims statute and state emergency management statute, provides the basis for civil actions for damages involving emergency management activities against state and local jurisdictions. The law in each state, including statutes, court decisions, and the state constitution, defines the extent to which state and local governments may be subjected to civil suits for money damages. The goal of this section is to provide those involved in emergency management with a basic understanding of liability issues involved in emergency planning, response, recovery, and mitigation. It is to provide an introduction to the nature and scope of governmental liability under civil law in emergency management programs and activities. Because of the potential exposure of public agencies to civil claims for money damages, public employees and officials need to understand the law as it affects their jurisdiction. This section is also intended to clarify steps that may be taken to reduce individual and organizational vulnerability to claims of liability. 11.1
2 11.2 CHAPTER ELEVEN Whether liability exists depends on the specific circumstances in a situation and the law in the state. The legal principles presented here are applicable in any state, but they must be viewed with an understanding that the law may be different in a specific state. Questions to be addressed include: Can a public organization or official be held liable for money damages under state law? How do the courts determine if liability exists? What type of acts could lead to liability under state law? What types of immunity exist for governmental agencies or their representatives? What defenses exists for governmental units, officers, employees, or representative? What types of damages or relief may be recovered? Who pays if the courts determine liability? Can local governments be held accountable for emergency planning and response activities established by federal law (Occupational Safety and Health Act or the Emergency Planning Community Right to Know Act)? How do federal hazardous materials requirements affect state and local emergency management organizations? One of the goals of any public official should be to understand the circumstances from which claims for money damages arise and what proactive steps can be taken to prevent individual and business losses due to the actions of public agencies in a disaster or emergency. The strategy should be to plan, organize, implement, and control public programs and activities in such a manner as to avoid losses THE THREAT Can an agency, government employee, or volunteer be sued? The answer in most cases is yes. There are few rules and restrictions that will prevent a person or organization from being named in a legal action seeking damages and reimbursement to remedy a supposed wrong. However, whether the suit will be successful is another issue. While most people are familiar with the liability that commonly revolves around traffic accidents, claims may also be brought based on the use of equipment, chemicals, and other products and services blamed for injuries LIABILITY UNDER STATE LAW A tort is an action that harms another. It occurs when a person acts or fails to act, without right, and as a result another is harmed. Torts involve civil actions for personal injuries or property damage rather than a criminal action or a contractual claim. Torts encompass a very broad area of the law, including intentional acts, negligence, and strict liability (Oleck, 1982). Tort law is defined at the state level by statutes, court decisions, and constitutional provisions; it applies to government entities, individual citizens, and businesses. The law of torts protects individual and business interests from harm and provides a means for those harmed by another to seek compensation for their loss. Tort liability claims also provide a basis for distributing losses to those who are responsible for the harm. Tort law thus provides a systematic means for analyzing and resolving liability claims, while protecting both the interests of the person injured and the governmental jurisdiction. Torts encompass a very broad area of the law, including (Oleck, 1982):
3 LIABILITY IN EMERGENCY MANAGEMENT 11.3 Intentional acts Negligence Strict liability Tort liability includes intentional acts that harm others. Intentional torts include trespass, assault and battery, intentional infliction of emotional distress, defamation, and invasion of privacy. A second type of liability includes strict liability. It is known as liability without fault and relates to situations where one is held responsible for the consequences of his or her actions or omissions, regardless of fault or exercise of due care. Strict liability was first applied in cases involving abnormally dangerous activities such as blasting, but it has achieved significantly broader application in the law of products liability and workers compensation. The third form of liability is the major focus of this section. This includes claims of negligence, which are unintentional acts or omissions that cause harm to another. Negligence involves an unintentional but wrongful action or inaction by one person that harms another NEGLIGENCE: DETERMINE IF LIABILITY EXISTS The legal standard in negligence cases has often been stated as simply that a person has a duty to exercise that degree of care, skill, and diligence that a reasonable or prudent person would exercise under similar circumstances. This rule, as applied to governmental entities, must be understood in terms of the essential elements of negligence. These elements include: Duty: the existence of a duty to conform to a defined standard of care that is owed to a particular party, either established by statute, defined by common law (based upon judicial decisions), or established by policy by the governmental entity Breach: a failure to conform to that standard of care, or a failure to carry out the duty Damage: actual loss or damage to the injured party(ies) Causation: a causal connection between the act of the governmental employee, official, or agency body and injury to a third party(ies) All negligence cases have these elements in common, and absence of proof of any one element will defeat a finding of liability (American Law Institute, 1965) Duty A duty of care may be imposed by common law or by statute or may be created by the voluntary assumption of a responsibility. The common law generally imposes a duty of care where a person is required to recognize that his or her conduct involves a risk of harm to another. The common law duty requires a person to use a reasonable degree of attention, perception, memory, knowledge, intelligence, and judgment in his or her actions. This is often referred to as due care. The common law duty of care arises in almost every aspect of a public official s duties and responsibilities. Employees have a common law duty to repair or place off limits premises and equipment that are in a dangerous condition. Public safety employees have a duty to protect persons in their care and custody, including protective custody. Similarly, a public works department, when informed of a road hazard, has a duty under common law to repair defects.
4 11.4 CHAPTER ELEVEN This duty or standard of conduct may also be imposed and defined by statute rather than just by common law. Statutory duties include traffic codes, motor vehicle maintenance codes, workplace safety requirements, park construction and maintenance standards, environmental regulations, and inspection requirements. Local emergency management agencies may have a statutory requirement (duty) to develop a local emergency response plan. These legal requirements may or may not specifically mention liability but simply establish a legal duty. The Wyoming Emergency Management Act provides an example of a state statutory duty to plan. 1 This act requires the preparation of a local disaster and emergency management plan. Other states also require local jurisdictions to develop a local emergency response plan Breach of Duty Liability based on negligence means that there has been a failure to act according to a standard of care. It is the failure to conform to prevailing professional practice or to act as a reasonable or prudent person under the same circumstances. The standard of care is critical to the determination of a breach of duty and a finding of negligence. Although the standard may be established by the governmental actor s profession, the courts allow the injured party an opportunity to show that the actions of the governmental official or organization were unreasonable. Since a determination of breach of duty may be subjective, the courts may ultimately have to determine if the actions of the government actor were reasonable. In order to determine if a duty exists, the courts may review previous court decisions in a state or from other states to clarify the scope of the law. However, emergency managers should make comparisons to any given case with caution. First, decisions in negligence cases are almost always dependent on findings of fact in the case, the particular conduct of the alleged wrongdoer, and whether the acts of the wrongdoers are the cause in fact of the injury suffered by the complaining party. Factual differences between cases, no matter how slight, may lead to different conclusions regarding liability. Second, comparisons to cases in other states may be based on statutory language or common law that differs from state to state. A municipality has a duty to repair a known defect in roads, bridges, or walkways in a reasonable period of time. Examples of emergency management duties could unclude any of the following: 1. Warning residents of a foreseeable flooding threat 2. Supervising volunteer emergency workers serving a public agency 2 3. Training employees or volunteers in shelter operations and procedures 4. Responding to citizen notification of downed trees or utility lines 5. Investigating complaints by citizens 6. Responding to calls for assistance when public agencies state they will provide assistance Liability may hinge on whether employees of the organization were informed that a hazard existed and that the hazard posed a significant threat to others. 1 Wyo. Stat. Section For an example of a state statutory immunity provision for response to a hazardous materials incident see Wis. Stat. Ann. Section (2) (1993), which creates a good Samaritan rule granting immunity from civil liability to persons who provide assistance or advice in handling problems in emergency or potential emergency situations relating to the threatened or actual discharge of hazardous substances. The immunity extends to mitigation of effects, prevention, cleanup, and disposition. The Act excludes persons who cause and are liable for the discharge or whose actions are grossly negligent, reckless, or intentional as well as those who are compensated for their efforts from the grants of immunity.
5 LIABILITY IN EMERGENCY MANAGEMENT Loss To recover in a tort claim, the injured party must demonstrate that he or she has suffered some loss as well as the amount and severity of that loss. This loss could be bodily harm such as a broken bone or strained muscle, property damage requiring automobile or home repairs, or a demonstrated loss of business. The claimant can show any single type of loss or a combination of any of the three. The key is that the claimant s loss be not hypothetical, but real Causal Connection The final element of negligence requires proof that the claimant s injury, damage, or loss is related to the acts or the inaction of the government agency or agent (defendant). For example, a citizen injured when he or she slipped on a wet floor in a public building would attempt to show that personal injuries resulted when staff who knew of a wet floor in a public area failed to act. This means that an employee failed to warn of a wet floor or to repair the cause of the wet floor. The claimant must demonstrate that the injuries resulting from the slip and fall on a wet floor were caused by the actions of the government agency and not the careless actions of the claimant. This causal connection is critical since a fall could result even on a dry floor from a person s lack of attention. A citizen could have been carrying a large package, lost her balance, and slipped. For a finding of negligence against a public agency, the claimant must show that there was connection between the actions or inaction of the staff of a public entity and the injury. The key is the failure of an employee or volunteer to carry out his or her duty to warn or clean up a wet spot on the floor, leading to the claimant s fall Case Example An auto accident involving a public employee in a government vehicle and a citizen in a nonemergency situation provides a clear illustration of the principles of negligence. Presence of a duty: A public employee, like any driver, has a duty to drive in a safe manner even in an emergency. When entering an intersection, the public safety vehicle has an obligation to ensure that other vehicles are yielding to the emergency vehicle. Failure to carry out duty: If public employees or volunteers drive a vehicle in a reckless manner or exceed the posted speed limit, they have failed to carry out their duty. Injury: If a collision occurs between the public employee and a citizen resulting in personal injuries to the claimant and their car, then loss has occurred. Link or causal relationship between the injury and acts of the public employee: The claimant must show that their loss resulted from the careless driving of the public employee rather than his or her own lack of attention or skill. For a finding of negligence to occur, each of these four elements must be present. If any of the four elements is not present, negligence cannot be found present. In Hamilton v. City of Shreveport, 3 The city was liable for flooding homes since the city lowered a floodgate without notice in order to raise the water level of the lake. The city of Shreveport was not acting in an emergency and had adequate time to consider alternative 3 Louisiana Court of Appeals, d 30
6 11.6 CHAPTER ELEVEN strategies to reduce potential flooding that might not lead to flooding of homes near the river. The Louisiana Court of Appeals determined that the city had a duty to warn citizens of the action it was to take HOW COULD LIABILITY ARISE? Planning In many states, local agencies are required by law to prepare an emergency response plan. A failure to prepare a plan could leave a community open to claims. Emergency plans that are out of date, have not been based on realistic assumptions, inflate capabilities, do not involve all operations areas and functions of governmental entities, or are not fully developed may form the basis for a claim. It may be more difficult to recover from a local jurisdiction in a suit based on a failure to prepare, maintain, or exercise a good plan. The court would have to determine if the local community fulfilled its duty when the plan required by law was determined inadequate in a disaster. Plans are not static documents. They require change. A regular review process should be established and updates prepared, tested, and communicated to other local units. There should be an updating procedure to ensure that the new or revised parts of the plan are disseminated to all involved in emergency management. Once a plan is developed, it should be followed. Freelancing or performing procedures that may be opposite or contrary to the planning document without just cause could result in harm to the community. Having a realistic, effective, and current plan is one of the best ways for a community to reduce its liability exposure Training Employees and volunteers must be trained to perform their jobs and fulfill their responsibilities in a safe manner. Training requirements may be required by state law or imposed by local regulation. These regulations may cover anyone who is expected to participate in emergency response activities. In addition, steps should be taken to ensure that the training participants understand and can function with the training that they have received TYPES OF IMMUNITY FROM LIABILITY Three types of immunity exist for governmental agencies and officials: 1. Discretionary immunity 2. Governmental or proprietary immunity for specific functions of a jurisdiction 3. Statutory immunity as provided by state law Discretionary Immunity Public officials in each state enjoy immunity while exercising discretionary judgments including policy-making decisions. Discretionary immunity evolves from the judgmental decision-making process of public officials and employees. The intent of discretionary immu-
7 LIABILITY IN EMERGENCY MANAGEMENT 11.7 nity is to free the public official from fear of tort liability if that judgment results in harm to another. The discretionary immunity provisions in each state evolved from a concern that decision makers would not make effective decisions for fear of liability. This form of liability is not intended to exempt public officials from liability but to protect them when making public policies. Public policy decisions could involve the determination to evacuate a community or put shelter in place. These actions establish a public policy and are discretionary in nature. They are not operational in nature and do not state how citizens should evacuate or the specific steps one should take to shelter in place. Examples of discretionary immunity include: The formation of basic governmental policy, programs, or objectives The act of public officials in setting priorities rather than actions that implement a decision made by others The act requires the exercise of basic policy evaluation, judgment, and expertise on the part of a government official The governmental agency involved possesses the requisite constitutional, statutory, or other lawful authority to carry out the challenged act 4 The above actions are general concepts to provide a basis for identifying what is a discretionary action and thus immune from liability. The emergency manager should review the specific definition of discretionary acts under his or her state law to ensure that the action is covered. Discretionary immunity protects the public official, employee, or volunteer, but also the organization. Where discretionary immunity blocks a claim against the governmental actor, it also prohibits the action against the agency. Officials who understand the scope and extent of their authority and exercise rational basis for decisions are protected from claims for exercising public policy decisions Governmental Immunity The law in 14 states recognizes a special form of immunity for some activities of public agencies. It distinguishes between governmental functions, which are traditionally performed by the government, and those functions that are proprietary in nature or performed traditionally by the private sector. Under the governmental function theory, core governmental functions, such as public safety, firefighting, police activities, health and building inspections, and the collection of taxes, are mandated responsibilities that can be performed only by governmental units. Because of the unique role that these essential functions have in the community, public agencies and employees enjoy immunity from claims of negligence under state law. In those states that recognize this form of immunity, governmental units and employees enjoy immunity or limited liability from tort liability even though the governmental actor may have been negligent (Reynolds, 1982). For states that do not recognize a distinction between governmental and proprietary immunity, this form of immunity is not available. Proprietary functions, however, have no special immunity attached to the activity. Proprietary activities may be performed by either a public or private organization. Examples of proprietary activities include transit systems, parking garages, medical care, recreation services, and sewer and garbage collection. For these proprietary activities, public agencies and employees have no special immunity and are as accountable for their actions as a private employer. 4 Evangelical United Brethren Church v. State, 407 P.2d 440 (Wash. 1965).
8 11.8 CHAPTER ELEVEN Statutory Immunity Each state legislature has adopted statutory provisions recognizing immunity in specific public activities even when the actor has been negligent. Immunity from claims of negligence is recognized in selected states for child care social service workers providing protection services, teachers who report child abuse, emergency response activities in hazardous materials accidents, firefighters, and inspections or licensing activities. Statutes granting immunity from personal liability for acts associated with these designated activities are intended to create qualified immunity for those they protect. These immunity provisions extend protection to negligent acts but not to actions for gross negligence or intentional actions intended to harm another. Many states have adopted immunity provisions in emergency management activities. These provisions are often found in the state emergency management act. A critical element of these provisions involves the defining of an emergency. If the emergency activity is not included in the definition of emergency, the immunity provision does not apply. The state immunity provisions in state emergency management acts may be broadened to include any emergency management activity or restricted to actions only during a declared emergency (Pine, 1995). In addition, state statutes may provide immunity for specific activities including providing assistance in a hazardous materials spill. 5 Following are sample state emergency provisions: Emergency Management means the preparation for and carrying out of all emergency functions essential to the recovery, and restoration of the economy by supply and resupply of resources for the urgent survival and military needs caused by enemy attack, sabotage, civil disorder, or other hostile action, or by fire, flood, earthquake, or other natural causes and other technological, industrial, civil, and political events. These functions include without limitation the coordination of fire-fighting services, police services and health services, rescue, engineering, attack warning, communication, evacuation, welfare services, transportation, public utilities, and other services necessary for the civilian protection. 6 Immunity from Liability a) All activities relating to emergency management are governmental functions. The state, any political subdivision, state agencies, and except in willful misconduct, gross negligence or bad faith, any emergency management worker complying with or reasonably attempting to comply with this statute is not liable for the death of or injury to persons or for damage to property as a result of the activity or training. b) Any requirement for a license does not apply to any authorized emergency management worker in the course of performing practices as a professional, teaching, training, mechanized or during an emergency management emergency in training for an emergency or during an emergency management exercise. c) Emergency management worker includes any full- or part-time paid or volunteer or auxiliary employee of any state or political subdivision performing emergency management services in this state subject to the order of the state or any political subdivision. 7 The above immunity provision appears to provide extensive protection for officials, employees, and volunteers. Actually, the immunity is limited by the Wyoming Governmental Claims Act, which waives immunity from suit for the operation of vehicles, health care, and law enforcement. 8 Other states provide statutory immunity for the activities of a firefighter. 9 5 See note 2 above for an example of a state statutory immunity provision for response to a hazardous materials incident. 6 Wyoming Emergency Management Act, Wyo. Stat. Section (1998). 7 Wyoming Emergency Management. 8 Wyo. Stat. Section (1977). 9 For an example of immunity for firefighters see La. Rev. Stat. Ann. Section 37:1735 (1992): Grants immunity from civil liability to volunteer firefighters rendering emergency or rescue services in the course of performing their duties. First aid care given to persons is excluded from immunity, as is grossly negligent or intentional conduct. La. Rev. Stat. Ann. Section 37:1735 (1992): Any volunteer fireman who renders emergency or rescue services while in the performance of his duties at the scene of an emergency shall not be individually liable for civil damages as a result of acts or omissions. The provision includes volunteer firemen.
9 LIABILITY IN EMERGENCY MANAGEMENT 11.9 TABLE 11.1 State Emergency Management Acts Alabama Emergency Management Act. Ala. Code Section to 24 (1955). Alaska Disaster Act. Alaska Stat. Section to 230 (1977). Alaska Civil Defense Act. Alaska Stat. Section to 200 (1977). Arizona Disaster Act. Ariz. Rev. Stat. Ann. Section to 317. Arkansas Emergency Management Act. Ark. Stat. Ann. Section to 130 (1985). California Emergency Services Act. Cal. Gov t. Code 8550 to 8668 (1970). Colorado Civil Defense Act. Col. Rev. Stat. Section Connecticut Emergency Services Act. Conn. Gen. Stat. Ann. Section 28-1 et seq. Delaware Civil Defense Act. Del. Code Ann. Tit. 20 Section 3101 to Florida State Emergency Management Act. Fl. Stat to (1983). Georgia Emergency Management Act. Ga. Code Ann. Section et seq. (1981) Hawaii Civil Defense and Emergency Act. Hawaii Rev. Stat. Section et seq. and Idaho State Disaster Preparedness Act. Idaho Code Section to 1018 (1975). Indiana Civil Defense and Disaster Law. Ind. Code Section to 27 (1975). Iowa Disaster Services Act. Iowa Code Ann. Section 29C.1 to 16 (1976). Kansas Emergency Preparedness Act. Kan. Stat. Ann. Section Kentucky Disaster and Emergency Response Act. Ky. Rev. Stat. Section (1974). Louisiana Civil Defense Act. La. Rev. Stat. Ann. Section 29:601 et seq. Chapter 4 State Civil Defense Agency (1950). And The Louisiana Disaster Act of LA. Rev. Stat. Ann. 29: Hazardous Material Act. La. Rev. Stat. Ann. 32:1520. Maine Civil Emergency and Preparedness Act. Me. Rev. Stat. Ann. Tit. 37-B Section 701 to 824 (1987). Maryland Emergency Management and Civil Defense Act. Md. Code Ann. Article 16A Section 1 to 36. Massachusetts Emergency Management Act. Mass. Gen. Laws Ann. Ch. 31 Section 12. Michigan Emergency Preparedness Act. Mich. Comp. Laws Section (1960). Minnesota Emergency Services. Minn. Stat. Ann. Section to 46 (1979). Mississippi Emergency Management Act. Miss. Code Ann. Section Missouri State Emergency Management. Mo. Rev. Stat. Section Montana Disaster and Emergency Services Act. Mont. Code Ann to 609. Nebraska Disaster and Civil Defense Act. Neb. Rev. Stat. Section to 68 (1973). Nevada Emergency Management Act. Nev. Rev. Stat. Section to 160 (1975). New Hampshire Civil Defense Act. N. H. Rev. Stat. Ann. 107:1-25 (1973). New Jersey Emergency Services Act. NJ Stat. Ann. Section 52:14E-1 (1972). New Mexico Civil Emergency Preparedness Act. NM Stat. Ann. Section to 10. New York State and Local Natural and Man-Made Disaster Preparedness Act. NY Executive Law Art. 2-B Section 20. N. Y. Stat Stat. Section 9101 to 9190 (1951). North Carolina Emergency Management Act. N.C. Gen. Stat. Section 166A-1. et seq. (1977). North Dakota Disaster Management. N.D to 22 (1985). Ohio Civil Defense Act. Ohio Rev. Code Ann. Section to.99. Oklahoma Civil Defense and Emergency Resources Management Act. Okla. Stat. Ann. Tit. 63 Section (1967). Emergency Management and Services Act. Or. Rev. Stat. Section to.580 (1983). Pennsylvania Emergency Management Services Code. 35 Pa.C.S.A. Section 7101 Rhode Island Civil Defense Preparedness Act. R.I. Gen. Laws Section South Carolina Emergency Preparedness Act. S.C. Code Ann to 460. South Dakota Emergency Disaster Services Act. S.D. Codified Laws to 28. Tennessee Emergency Management Act. Tenn. Code Ann. Section Texas Disaster Act. Tx Rev. Civ. Stat. Ann. Chapter to 173 (1975). Utah Disaster Response and Recovery Act. Utah Code Ann. Section 63-5a-1 to 11. Vermont Civil Defense Act. Vt. Stat. Ann. Tit. 20 Section 1 to 29. Commonwealth of Virginia Emergency Services and Disaster Law. Va. Code Section to 29 (1973).
10 11.10 CHAPTER ELEVEN For examples of state statutes recognizing immunity for volunteers, see the following: (a) A qualified volunteer shall not be held vicariously liable for the negligence of another in connection with or as a consequence of his or her volunteer activities. (b) Nothing in this chapter shall be construed to limit the liability of a person acting outside the scope of the volunteer program. (c) Nothing in this chapter shall be construed to limit the liability of any volunteer agency. [Ark. Stat. Ann. Section (1987)] A qualified volunteer shall not be liable in damages for personal injury or property damage sustained by one who is a participant in, or a recipient, consumer, or user of, the services or benefits of a volunteer by reason of any act or omission of a qualified volunteer in connection with the volunteer except as follows: (1) Where the qualified volunteer is covered by a policy of insurance, in which case liability for ordinary negligence is limited to the amount of the coverage provided (2) Where the qualified volunteer acts in bad faith or is guilty of gross negligence (3) Where the qualified volunteer negligently operates a motor vehicle, aircraft, boat or other powered mode of conveyance. If the actionable conduct of the qualified volunteer is covered by a policy of liability insurance, whose liability for ordinary negligence shall be limited to the amount of the coverage provided (4) Where the qualified volunteer negligently performs professional services extended to an individual, which the qualified volunteer is licensed under state law to perform, including but not limited to legal, medical, engineering, and accounting services. [Ark. Stat. Ann Section ] Exceptions to Immunity The immunity provisions of almost all state statutes include a statement that provides that the acts of employees or representatives of the governmental jurisdiction will be protected from civil suit except in the case of willful misconduct, gross negligence, or intentional harm to others. Willful or wanton misconduct involves highly unreasonable conduct or actions that are an extreme departure from ordinary care. Gross negligence involves unreasonable conduct but actions that are not taken with the intent to cause injury to another. Gross negligence is more than mere thoughtlessness or inattention or a mere mistake resulting from inexperience or confusion; these actions would be viewed by the courts as negligence and covered by any statutory immunity provisions under state law (Pine, 1997). While there may be laws in your state to protect or limit your liability from suit, you may still be required to go to court and prove that you were covered by the immunity provisions at the time that the alleged wrong occurred. The immunity provisions that may be present in your state are best viewed as a defense to be used against, rather than a prohibition of, tort suits DEFENSES IN LIABILITY CLAIMS Governmental jurisdictions may avoid liability by using two major types of defenses: denial defenses and affirmative defenses. A denial directly disputes the allegation by the plaintiff that the defendant has behaved negligently. In effect, the defendant is claiming that he or she (or the governmental unit) has acted with reasonable care. When the defendant denies plaintiff s allegation of negligence, the burden of proof remains on the plaintiff to show negligence, including duty, breach of duty, legal causation, and injury. Although not obligated to do so, the defendant usually offers proof of his or her actual conduct, showing that it
11 LIABILITY IN EMERGENCY MANAGEMENT conformed to the required standard of care. Unless plaintiff s proof outweighs the defendant s on this issue, there is no finding of liability. Affirmative defenses may allow the defendant to avoid liability, even where his or her conduct is negligent. These defenses include, but are not limited to: Absolute or statutory immunity (as noted in the above section) The settlement of the claim Filing or bringing the suit after the statute of limitations (which bars the action) Assumption of the risk giving rise to the injury The person bringing suit contributed to the injury (strict contributory negligence) The settlement of the claim at any time before the dispute is formally resolved by the court terminates the action. A settlement agreement may be reached before formal hearings are begun or at any time during the court proceedings. The agreement resolves the dispute and includes conditions such as the payment of a portion of the damages requested by the plaintiff. The settlement may be reviewed by the court but bars future action on the dispute. Statutes of limitations are legislative enactments that impose time restrictions on filing a notice of a claim or suit. Statutory periods of limitations on the bringing of actions do not ordinarily begin to run until the injured party has been harmed and has a basis for the claim. But once the time restriction concludes, the suit is barred. Since the running of the statutory period could bar plaintiff s claim, even though he was unaware of his injury, some states have held the running of the time requirement does not begin until plaintiff discovers, or with reasonable diligence, should have discovered, the injury. The statute of limitations in many states for claims against a governmental entity may vary from six months to one or two years. Assumption of risk means that the injured party has voluntarily expressed in advance or implied that he or she was aware of the risks involved and agreed to take his or her chances of being injured. The assumption of risk may be by express agreement, implied agreement, or simple awareness (knowledge) of an obvious risk. Assumption of risk is often included in the statutory or comparative negligence provision in many states. An example of this concept could include a citizen refusing to evacuate as a hurricane approaches the community, even when local officials mandate an evacuation from the area. Contributory negligence states that a plaintiff may not recover damages for injuries suffered as a result of the defendant s actions if the plaintiff s conduct was also negligent and contributed to his or her injuries. Under a strict standard of contributory negligence, which is applicable in some states, the plaintiff s own negligent conduct may bar recovery entirely, even though the defendant was negligent and that negligence contributed to the plaintiff s injury. An alternative to this strict standard of contributory negligence approach may be used apportioning damages in direct proportion to the relative fault of the parties. This doctrine of comparative negligence which applies in many states does not avoid liability or bar the plaintiff from recovering damages for injuries incurred if those injuries were caused, in part, by the defendant s conduct. Rather, the plaintiff s recovery is reduced in some proportion, based upon his or her fault, if that fault contributed to the injuries. In some states a modified doctrine is used by the courts that applies a 50% rule, or an equal to or greater than system. Under this modified approach, a plaintiff recovers unless his negligent conduct is equal to or greater than that of defendant, in which case the plaintiff recovers nothing DETERMINING LIABILITY To clarify the scope of liability under state law, local officials, volunteers, employees, and members of local emergency planning committees should focus on the following points:
12 11.12 CHAPTER ELEVEN 1. Is sovereign immunity abolished, retained, or partially waived under state law? If sovereign immunity is retained, abolished, or partially waived, state statutes and court decisions will clarify what immunity exists in specific programs or actions. Does the state have a comprehensive tort liability statute or a few provisions of the state code that describe the liability of government units? (see Table 11.2 for a list of state tort law references.) 2. Does state law recognize discretionary immunity? Almost all states recognize immunity for public officials exercising discretionary actions and making decisions. 3. Does the state recognize the distinction between governmental and proprietary activities, and offer immunity for governmental functions? States that recognize immunity for governmental functions may specifically include state emergency management programs and activities as governmental functions. 4. What is considered a disaster under your state emergency management act? Many state emergency management acts provide immunity for state and local jurisdictions involved in emergency management activities. The immunity provisions may apply to both natural and technological disasters if the term disaster is defined in the statute. Most state emergency management statutes define the term disaster in the introduction to the statute. Review the introductory section of your state emergency management act to see if disaster includes both technological and natural events TYPES OF DAMAGES AND RELIEF The injured party seeks relief in the form of a court order (equitable relief), financial compensation, or both forms of relief. Equitable relief in a tort case is usually an injunction ordering the defendant to cease and activity or to act in a specific manner. Money damages are sought in most tort cases involving injury to a person or an individual s property and are commonly the principal form of relief. Money damages are awarded first as compensation, or restitution for the harm suffered by the injured party. Money damages are classified into two major categories: compensatory (including nominal, general, and special damages) and punitive. Compensatory damages are for the recovering party s actual out-of-pocket medical expenses; temporary or permanent disability; lost earnings (present and future); loss of consortium; and, in wrongful death cases, damages, including funeral expenses, and pain and suffering of survivors. Nominal damages are awarded where no real or substantial loss has resulted, but where the defendant has technically harmed the plaintiff. In this case the plaintiff may be awarded $1.00. General damages are those that compensate the injured party for actual losses which are the normal result of the actual injuries suffered (including pain and suffering). Special damages are those that compensate for a loss but do not normally flow from the injuries sustained in all typical cases. Such damages may include the aggravation of a preexisting condition, loss of business revenue, and other damages, which flow from special conditions of the case or the special situation of the plaintiff. Punitive damages are awarded where the defendant s conduct was considered by the court to be intentional, willful, reckless or to constitute gross negligence. Punitive damages are intended to deter future conduct of the type at issue. This form of damages is not generally available against a public entity.
13 LIABILITY IN EMERGENCY MANAGEMENT TABLE 11.2 References to State and Local Governmental Tort Claims Statutes Alabama Local Governmental Claims Provisions. Ala. Code Section (1994), Ala. Code Section , Ala. Code Section (1965), and Ala. Code Section (1990). Alabama State Board of Adjustment Act. Ala. Code Section (1994). Alaska Alaska Local Government Tort Claims Act. Alaska Stat (1994). Alaska State Tort Claims Act. Alaska Stat (1992). Arizona Arizona State and Local Tort Claims Act. Ariz. Revs. Stat. Ann. Section et seq. (1992). Arkansas Arkansas Local Governmental Tort Claims Act. Ark. Stat. Ann. Section (1993). Arkansas State Claims Commission. Ark. Stat. Ann. Section (1991). California Tort Claims Act Calif. Govt. 810 et. seq. (West 1963). Connecticut Local Governmental Tort Claims Act. Conn. Gen. Law (1989). State Tort Claims Act. Conn. Gen. Stat. Ann et seq. (1995). Delaware The State Tort Claims Act. Del. Code Ann. Title 10 Section 4001 et seq. (1979). District of Columbia District of Columbia Tort Claims Act. D.C.C.E et seq. (1974). Florida Florida Tort Claims Act. Fla. Stat et seq. (1996). Georgia Georgia local government liability provisions. Ga. Code Section Georgia State Claims Advisory Board. Ga. Code Ann. Section (1987). Hawaii Local government liability provisions. Hawaii Rev. Stat. Section 657 and 663 (1986). Hawaii State Tort Liability Act. Hawaii Rev. Stat. Section et seq. (1991). Idaho Idaho Tort Claims Act. Idaho Code Section (1971). Illinois Local Government and Governmental Employees Tort Immunity Act. Ill. Revs. Stat. Ch. 745 Section 10/ et. seq. (1965). Illinois Court of Claims Act. Ill. Rev. Stat. Ch. 705 Section 505/ 1 etc. (1996). Indiana Indiana Tort Claims Act. Ind. Code Section et seq. (1974). Iowa Iowa Tort Liability of Governmental Subdivisions Act. Iowa Code Ann. Section to (1989). Kansas Kansas Tort Claims Act. Kansas Stat. Ann. Section et seq. (1981). Kentucky Local government liability provisions. Ky. Rev. Stat. Section , , , and Kentucky Board of Claims Act. Ky. Revs. Stat. Ch (2) (1985). Louisiana Louisiana Governmental Claims Act. La. Rev. Stat. Ann. 13: 5101 (1996). Maine Maine Tort Claims Act. Maine Rev. Stat. Ann. Title 14:8102 (1995). Maryland Maryland local government liability provisions. Md. Cts. & Jud. Proc. Code Article 23A Section 1A (1990), Md. Cts. & Jud. Proc. Code Ann. Section to 401 (1996), Md. Ann. Code Article 23A Section 1B (1979). Maryland Tort Claims Act. Md. Code Ann. State Government Section to (1990). Massachusetts Massachusetts tort claims provisions. Mass. Gen. Laws Ann. Chapter 258 Michigan Minnesota Section 2 (1993). Michigan tort liability claims provisions. Mich. Comp. Stat. Section et seq. (1991). Minnesota Local Government Tort Claims Act. Minn. Stat et seq. (1996). Minnesota State Government Tort Claims Act. Minn. Stat. Ann. Section et seq. (1996). Mississippi Mississippi tort claims act Miss. Code Ann. Section et seq. (1993). Missouri Missouri tort claims provisions. Mo. Revs. Stat (1989), , (1) (1996), , (1989).
14 11.14 CHAPTER ELEVEN TABLE 11.2 (Continued) References to State and Local Governmental Tort Claims Statutes Montana Montana Governmental Tort Liability Act. Mont. Code Ann to (1991). Nebraska Nebraska Political Subdivision Tort Claims Act. Neb. Revs. Stat. Section et seq. (1992). Nebraska State Tort Claims Act. Neb. Revs. Stat. 81-8,209 et seq. (1991) Nevada Nevada Tort Claims Act. Nev. Rev. Stat. Section et seq. (1995). New Hampshire Local government tort claims provisions. N.H. Rev. Stat. Ann. Section 507- B:2 (1991), , , 97:3, 31:104, 412.3, and 507-B:4. State Claims Board. N.H. Revs. Stat. Ann. Section 541-B:2 (1994). New Jersey The New Jersey Tort Liability Act. N.J. Stat. Ann. Section 59:1-2 et. seq (1995). New Mexico New Mexico Tort Claims Act. N.M. Stat. Ann. Section to 29. New York Tort claims provisions. N.Y. Court Claims Article 2 Act Section 8 (1984). N.Y. General Municipal Law Section 50 (1909). N.Y. General Municipal Law Section 50 et seq. (McKinney Consolidated Laws of New York Annotated) North Carolina Local government tort claims provisions. N.C. Gen. Stat. Section 115c-43 (1984) and N.C. Gen. Stat. Section 115C-259 (1984). The North Carolina Industrial Commission. N.C. Gen. Stat. Section et seq. (1988). North Dakota Ohio Oklahoma Pennsylvania North Dakota Local Governmental Tort Claims Act. N.D. Cent. Code Section et seq. (1995) North Dakota State Tort Provisions. N.D. Cent. Code Section et seq. (1995), N.D. Cent. Code Section Ohio Local Government Tort Claims Act. Ohio Rev. Code Ann. Section et seq. (1990). State Claims Act. Ohio Rev. Code Ann. Section et seq. (1989). Oklahoma State Tort Claims Act. Okla. Stat. Ann. Title 51 Section 152 et seq. (1994). Political Subdivision Tort Claims Act. Pa. Stat. Ann. 42 Section 8541 et seq. (1995). Pennsylvania State Tort Claims Act. Pa. Stat. Ann. Title 42 Section 8521 et seq. (Purdon 1985). Rhode Island Rhode Island Tort Claims Act. R.I. Gen. Laws Section et seq. (1984). South Carolina South Carolina Tort Claims Act. S.C. Code Ann. Section to 190. (1986) South Dakota Tennessee Texas Utah South Dakota Tort Claims Act. S.D. Codified Laws Section et seq. (1985). Tennessee Local Governmental Tort Liability Act. Tenn. Code Ann. Section et seq. (1984). Tennessee State Claims Board. Tenn. Code Ann. Section (1985). Tort Claims Texas Tort Claims Act. Title 5. Civil Practices and Remedies Governmental Liability Chapter 101 Civil Practices and Remedies Section (1995). Utah Governmental Immunity Act. Utah Code Ann. Section et seq. (1966). Vermont Tort claims provisions. Vt. Stat. Ann. Title 19 Section 1371 (1984), 29 Section 1401 (1984) and 19 Section 1371 (1984) Vermont State Tort Claims Act. Vt. Stat. Ann. Title 12 Section et seq.,
15 LIABILITY IN EMERGENCY MANAGEMENT TABLE 11.2 (Continued) References to State and Local Governmental Tort Claims Statutes Virginia Local governmental tort claims provisions. Va. Code Section (1962), (1987), 10-62, (1989), and (1984). Tort Claims against the Commonwealth of Virginia Act. Va. Code Section et seq. (1991) Washington Local government tort claims provisions. Wash. Rev. Code Ann (1993). Tort claims provisions. Wash. Revs. Code Ann. Section West Virginia Governmental Tort Claims and Insurance Reform Act. W.Va. Code 29-12A-1 to 17 (1986). West Virginia Court of Claims Act. W.Va. Code Section et seq. (1991) Wisconsin Wisconsin Tort Claims Act (Local). Wis. Stat. Ann. Section (3) (1995) Wisconsin State Claims Act. Wis. Rev. Stat Wyoming Wyoming Governmental Claims Act. Wyo. Stat. Chapter 39 Section (1977). (State and local application) Limits on Damages Many states have imposed statutory limits upon the amount of compensatory damages that may be recovered in tort cases against governmental units. These statutory caps may provide a limit on awards for individual claims and limits for each incident or occurrence. These limits may range in amount from $25,000 $50,000 per individual claim, to $100,000, or up to $1,000,000 per occurrence (Pine, 1998). The limitation imposed by these statutory provisions may be waived in some states by the purchase of insurance. This exception to the statutory cap, which is recognized in some states, is seen as a voluntary waiver of immunity to the extent of the coverage provided by the insurance policy in many states INDEMNIFICATION OF EMPLOYEES AND VOLUNTEERS WHO PAYS? Official representatives of a governmental unit who are named individually in a tort action are generally entitled to protection against personal financial loss or indemnification, with regard to both attorney s fees and judgments that might be awarded against them. In some states, the suit must be filed against the public entity itself, and not the employee or the government agency representative. Almost all states recognize that the governmental unit is liable for the negligent acts or omissions of its agents or employees who are acting within the scope of their duties as public employees. The employee in this context includes not only paid staff, but also volunteers. Elected officials who receive no pay and volunteers would thus be included in this definition of employee. The liability for the employee s actions is passed on to the governmental unit as employer, under a theory generally known as vicarious liability. In many states the vicarious liability of the governmental employer is specified by statute. The governmental entity may not be liable for an employee s actions if the employee acted outside the scope of his or her duties or with an intent (malice) to harm another, or if the actions were made with reckless disregard for the rights of others. Thus, damages must be paid by the individual. Most state indemnification statutes provide that where the em-