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Standard of Care, Torts, and Immunity

The following information is provided for guidance and should not be used as a legal guide. Please consult a qualified attorney for legal assistance, if needed.

Use this information to understand that individual staff, board members, and your agency may be a risk if you do not understand where liability issues may arise. During a disaster event, everyone is under stress. Staff come in to serve but are worried about their family. People tend to work extended hours to help. All these factors add to the increased risk of making mistakes or making bad judgment calls. Through training, clear role assignments, and pre-planning with local Emergency Management and others, you can work to protect your agency and staff.

Whether or not your agency is a part of local government will impact whether some of the following information applies to you. However, pre-disaster planning with Emergency Management, local government, and others should adequately protect your agency from most forms of liability.

What is "Standard of Care"?

What are Torts and How are They Relevant?

Government or Sovereign Immunity

What Does it all Mean?

What is "Standard of Care"?
Standard of Care "is the minimum accepted care based on sources such as state laws and judicial decisions, administrative orders, local protocols and locally accepted guidelines published by emergency care organizations and societies, and what has been found to be acceptable in the past (precedent). This Standard of Care allows you to be judged based on what is expected of someone with your training and experience acting in the same or a similar situation. Training and continuing education are your best ways to ensure that you will be able to provide the Standard of Care required by your state." Each state or locality has its own Standard of Care.

The concept of Standard of Care causes frustration to many emergency planners and responders. That is because the Standard of Care is not static. The Standard of Care that was in place a few years ago, is most likely out of date. Unless procedures and policies are updated to reflect the current Standard of Care, liability could be incurred.

The Standard of Care involves many factors and questions:

Cost/Benefit Analysis

• If the costs are unrealistic to provide a given service, it may not be reflected in the Standard of Care for that community.
• What are the capabilities of the "in place" systems? They must be effectively and efficiently utilized.
• What are the capabilities of similar systems? If the communities of similar size and conditions provide a service and your community does not, you may not be living up to the Standard of Care.

Court Decisions

• Court decisions also can have a great impact on your view on the Standard of Care. Your local legal counsel can assist you in this area.

Federal Documents

• Federal documents, planning guidelines and the like may also define the Standard of Care you must meet.
• The Standard of Care also may be clarified by nationally recognized standards organizations, such as the National Fire Protection Association.

You must work to keep current with the ever changing Standard of Care for your community. Your local attorney can help you define what standards you must meet to reduce your liability.

Many local emergency planning committees have seen the need and have begun to use the services of legal counsels in the planning process and to address their legal concerns. As an aging services provider, if you are part of a collaborative local disaster planning effort, any counsel used by emergency management would probably cover actions assigned to your agency through the planning process. But, do check.

Regular contact with legal counsel will offer the best results and will keep you up-to-date on Standard of Care measurements.

The liability issues faced in today's society are complex and varied. However, these concerns must be addressed. Ignoring the problem will not make it go away.

If you have not already, contact your local Emergency Management and ask to work with them on local disaster response. If you have already done community planning including Emergency Management, revisit your disaster response plan periodically and make sure that your staff and agency are covered for liability should they need to implement the steps in the plan.

What are Torts and How are They Relevant?
A tort is defined as "an action that harms another person, business, or group". It occurs when a person or group of people act, or fail to act, without right, and thus, harm another directly or indirectly. A tort is covered by civil law rather than criminal law.

There are five basic forms of tort liability. They are:

1. Strict Liability which arises when a law is violated.
2. Intentional Liability which is incurred when there is a known violation of the law or other regulation.
3. Negligent Liability which is incurred when a person fails to act in a manner that a reasonable and prudent person would have acted under similar circumstances.
4. Warrant Liability which is incurred when a promised service level is not delivered.
5. Civil Rights Liability which is incurred when a person's constitutional rights are violated.

These areas of liability are present every day for staff as they provide services and assistance. Under the stress of a disaster event, they may be even more of an issue if staff members have not had proper training and if they do not have a clear understanding of how they are expected to help. Both individual staff members and the agency itself could be sued.

There are four key elements that must be present in order to prove that negligence and liability exist. These include:

1. A duty or standard to act or perform.
2. A breach of that duty, which can be either an action or an omission.
3. A connection between the failure and the resulting harm.
4. An actual loss or harm to the parties involved.

 

Duty

• The existence of a duty to perform establishes a standard of conduct. The duty to perform may be statutory or part of common law. An example of a duty to perform would be a police officer who has the responsibility to enforce the law.
• Duties may be established by statutory law, common law, or by standards, organizations and bodies.

Breach

• There must be a breach of the duty to prove negligence. This violation may be intentional or, in most cases, unintentional.

Connection

• A cause and effect relationship must be established. It must be demonstrated that the failure to perform actually resulted in the harm that is alleged. The harm may be direct, such as injury, or indirect, such as lost wages.

Harm

• There must be measurable harm. This can be in the form of injuries, damage to properties, or the catch all harm of mental anguish. The category of mental anguish covers a very broad area. It can include such factors as sleep disorders, panic attacks, behavioral problems with children, and even sexual dysfunctions.
• Verdicts involving mental anguish may be very large.

courtesy NC Courts

All four elements must be present to win a case. If one is missing, negligence and liability cannot be proved.

Government or Sovereign Immunity

Some people believe that governments and their employees are still immune from liability concerns. This concept, called government or sovereign immunity, has been steadily eroded by the courts and legislative action since the 1960s. For example, in 1960, there were only five states in the Union that allowed themselves to be sued. Today every state in the nation and their municipal sub-units are subject to various forms of liability. *photo courtesy of the town of Smithfield, NC

There are four basic types of immunity that remain, although their use is limited. They are:

• Absolute Immunity
  is restricted to a very few public officials. These officials cannot be sued for their actions in office. For example, judges may not be sued for their decisions, even if they are later reversed. In addition, the President may not be sued for wrongful deaths in the event of war.
• Discretionary Immunity
  protects high elected officials while exercising their policy making authority. It does not, however, cover the implementation of those policies.
• Qualified Immunity
  or limited immunity, is often statutory in nature. It requires that certain actions be taken prior to the filing of a suit.
• Statutory Immunity
  may be created by legislative action. An example of this form of immunity are the "Good Samaritan" statutes throughout the United States.

While officials and their actions may be covered by immunity, they may have to prove in court that their actions were covered by the immunity provisions claimed.

Liability may arise in a variety of areas.

Planning

• Planning can be a major area of liability. Poor or incomplete plans and documents without the necessary implementing Standard Operating Procedures or guidelines, may be sources of liability.
• Plans that are out of date, plans that have not been revised, or which reflect obsolete capabilities, may incur liability.
• In addition, plans which are based on unrealistic assumptions or which list non-existent resources are liability hazards.
• Planning is an ongoing process and plans should be continually improved and updated. Routine and regular reviews of all planning documents are a must.
• Plans must be based on the hazards present and represent the realistic capabilities that are possessed by the community.

Training

• Training programs or events, and the possible lack thereof, are substantial liability hazards. There are a number of training standards that are placed on local governments. For example, the N.C. Division of Aging and Adult Services requires specific training for nutrition program managers. The failure to comply with these standards may result in liability for the agency (and local government) from both the client and others, if they are harmed as a result of this lack of training.
• Participants in training programs should be well documented and tested, if possible.

Risk Analysis

• Liability can be incurred if hazards are not identified or if hazards are not placed in a priority system for planning purposes. For example, planning for a hurricane in the middle of Kansas is not proper identification of hazards or setting the proper planning priority.
• Some hazards, particularly chemical hazards, are often overlooked. These hazards may be particularly dangerous for liability concerns.
• Every community should have a good hazard and risk analysis. These should be based upon accepted standards and practices, such as the use of EPA or FEMA procedures and programs.
• The use of dangerous, old or outdated equipment, and practices can be a major liability concern.

Threat Identification

• Government has a duty to worn the public of impending hazards and threats. There has been extensive research in this area and many new findings on the type of messages and how they are received can impact on warning compliance. Communities must be aware of these current developments and modify their plans to reflect these new ideas.
• The proper warning also must be given. If a warning message directs evacuees toward a hazard, rather than away from it, the liability hazard is clear.
• All available warning systems must be employed effectively. Some communities have suffered liability problems because they failed to activate outdoor warning systems at night, in order not to disturb the public.
• Methods and systems in waring science have greatly improved in recent years. Communities may want to evaluate if their present systems meet the new Standard of Care.

Negligence

• Municipalities and government entities may incur liability if they are involved with negligent construction or operation of emergency response systems.
• Communities must take steps to ensure that the equipment they are using and the services they are providing are safe

Vicarious Liability

• Vicarious liability may be incurred by the actions of others. For example, the municipality may be responsible under the principle of vicarious liability for the actions of volunteers.
• Clear cut Policies and Procedures need to be developed to limit exposure from vicarious liability.

Inverse Condemnation

• The theory of inverse condemnation is practiced in some jurisdictions throughout the United States. Municipalities may be liable for damages, even if it is through no fault of their own.
• If an event occurs, for whatever reason, and damage or harm is discovered, attempts should always be made to reduce the impacts of the damage, and thus reduce possible liability.

Attractive Nuisance

• Care should be taken by emergency responders that they do not create an attractive nuisance. While this principle is most commonly applied to situations such as backyard pools, it also may have an application in hazardous material disaster events.
• Roped off and unguarded spill zones may be very attractive to children and others who have a sense of adventure and who wish to investigate the area. There may be liability on the part of the municipality, even if the area is clearly marked.
• It often seems that "Murphy's Law" applies to these cases. Special precautions are always advisable, and emergency responders should recognize the boldness and tenacity of children.

What Does it all Mean?
The bottom line is that pre-planning is a must. First protect yourself with general Policies and Procedures. Next, be sure to have adequate agency insurance. Provide training for staff and board members. Have a pre-established disaster response plan developed with local Emergency Management, local county government and other appropriate agencies. Be specific about responsibilities and identify staff who will be responsible. Then, provide training for staff to ensure each person knows what is expected of them. And finally, revisit your plan periodically to ensure that is it up-to-date and has changed with local understandings and precedents. This may or may not include review by legal counsel.

This information is not presented to frighten or worry you. It is provided to give you a general idea that both staff and your agency may be held responsible for their actions in the aftermath of a disaster. When emotions are running high and people are exhausted and concerned about their own families - that is not the time to have to be thinking about what needs to be done and how to do it.

More Information on Agency Disaster Planning

More Information on Working With Volunteers

Legislation That May Impact Your Agency