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Emergency managers should understand concepts of liability in order to avoid lawsuits, and, if that is not possible, to win lawsuits. Especially important is the limited immunity from suit enjoyed by some public officials making some types of decisions. This notion is what is left of the concept called "sovereign immunity".

INTRODUCTION
A good rule to follow about needing attorneys is: Don't!" Nevertheless, emergency managers should understand concepts of liability in order to avoid lawsuits, and, if that is not possible, to win lawsuits. Especially important is the limited immunity from suit enjoyed by some public officials making some types of decisions. This notion is what is left of the concept called "sovereign immunity".

The law serves many purposes in our society. It gives us the powers and duties of government, the institutions by which government operates, the rules for business and personal relations, the principles by which controversies can be resolved, and the courts as forums for dispute resolution. It is important for emergency managers to see how the law creates legal liability for personal and professional conduct.

UNDERSTAND LEGAL LIABILITY
Understanding the law is only half of what an emergency manager needs. Equally important are the facts to which the law is applied to see if there is liability. Legal concepts are principles of general application. They are applied to a set of facts (this is called adjudication) when a court decides who wins a lawsuit. That is why some say that in order to deal with legal matters, one must have a "high tolerance for ambiguity".

Emergency managers must realize the types of decisions they make, and the results, in order to appreciate where liability could exist and how to minimize it.

There are many types of emergency management response decisions. There are decisions on how to draft statutes, regulations, and ordinances. There are decisions about what to put in plans, policies, and programs. There are decisions on how much to spend and how to allocate spending. There are decisions on whether to declare emergencies, over what geographic areas, and lasting how long. There are decisions on hiring and supervising employees and volunteers, as well as purchasing and allocating equipment and supplies. There are decisions about transportation routes, food and housing, and medical care. There are decisions on what structures to build and what structures to condemn. There are decisions on what schools and businesses to close and what curfews to impose. There are decisions on what laws to suspend and what requirements to put into their place. There are decisions on what population to evacuate, and how fast. And there are decisions on whether and when to declare an end to emergencies.

Now that emergencies come in so many different forms, natural and man-made, sudden and not-so-sudden, it is all the more important to see how these different kinds of decisions can result in liability.

LIABILITY FOR NEGLIGENCE
The law of negligence is of most concern. If a public official is negligent, the official or his/her agency may be responsible for paying money damages to the injured party.

Negligence is defined as a breach of a duty we each have to take reasonable care to avoid foreseeable harm to another, where our conduct causes that harm. For there to be a legal liability, a plaintiff in a suit must be able to prove this "duty of care", this breach, this injury, and this causation. In the typical negligence lawsuit, the plaintiff tries to introduce evidence that the defendant owed a duty to the plaintiff, that a standard of care existed for the relationship, that this standard was violated by the defendant, and that the plaintiff suffered injury as the proximate cause and as a foreseeable result of that violation. The defendant in the typical suit tries to introduce evidence that no such duty was owed, that no such standard existed, that the standard existed, that the standard was not violated, and that no injury resulted, or that any injury did not flow from the violation or was not foreseeable.

In other words, litigation is a forum for a plaintiff to try to prove negligence, and for the defendant to rebut that proof. The defendant is said to be liable for negligence if the judge sitting in the case (or a jury in many money damage cases) so determines.

GOVERNMENT IMMUNITY AGAINST LIABILITY
One way for an emergency manager to avoid liability, in addition to defending a suit successfully, is to invoke some form of sovereign or government immunity.

This type of immunity, if it exists for the particular decisions of a specific manager, is different for federal, state and local officials. Generally, claims against the federal government, for money damages from negligence, or brought under the Federal Tort Claims Act. Under this statute, an official can be liable for negligent conduct not involving a discretionary decision. This is all a matter of applying this important statute to the facts.

State officials, in contrast, generally can be liable for negligence only insofar as a state statute gives consent to being sued for negligence, or insofar as court decisions on sovereign immunity abrogate this immunity. There have been many court decisions narrowing this immunity.

Local officials, as a general matter, are liable for negligence except insofar as a state statute confers immunity.

Essentially the Congress and state legislatures have come to different conclusions on the wisdom and the extent of sovereign immunity. Lately there has been a strong trend toward abolition of general immunity, especially local. Earlier considerations, which led to the creation of the doctrine, were fear of financial drain of public resources and focus on the need for freedom of action by government officials.

The first lesson, then, is that the extent of liability (and immunity) is different federal-state-local. The emergency manager must read the applicable statutes and court decisions.

The second lesson is that liability (and immunity) differ for judicial, legislative, and administrative decisions. By and large, the conduct of judges and members of legislatures, even city council and town meeting members, are immune from successful suit. Executive branch decisions are another matter. The reason is that administrative officials make two types of decisions: ministerial and discretionary.

Ministerial decisions are those involving administrative details, routine functions, implementation of policy, and limited flexibility, usually at the operational level. For these kinds of decisions, there can be liability if negligence can be proved at the trial.

Another way of saying this is that a mistake in a ministerial decision is actionable and may result in a finding of negligence.

In contrast, discretionary decisions are those involving executive judgment, a range of choices, evaluation of those choices, and application of some training or experience, usually at the policy formulation level. For these kinds of decisions, there can be immunity for decisions made and actions taken, in good faith, within the scope of authority of the official.

In other words, a mistake made in good faith, in a discretionary decision, ordinarily is not negligence.

Here is a rule of thumb summarizing this concept:

A public officer acting within the general scope of authority is immune from tort liability for acts or omissions in good faith involving the exercise of the judicial, legislative, or discretionary administrative functions of government.

For state and local managers, the governing statutes are critical. The extent of immunity, if any, is found in the state statutes which govern official acts. Most managers think they have immunity when they do not. The reason is that many state statutes confer some immunity for some officials for some decisions, but not all.

For instance, some statutes have immunity provisions for volunteers but not for employees, for employees but not for supervisors, for chief executive officers but not for anybody else, for elected officials but not for appointed officials, for acts but not omissions, for negligence but not for gross negligence or intentional misconduct, or for decisions in declared emergencies but not otherwise. Commonly, there is immunity only for discretionary decisions, but not for ministerial decisions. This leaves most managers potentially liable for mistakes due to negligence in carrying out emergency programs.

Public opinion and court rulings have shifted away from immunity, reasoning that it is unfair to foist the burden of government mistakes on innocent victims, since government is able to pass the costs along to the taxpayers. The emergency manager who thinks there is complete immunity from all tort liability, effective everywhere for all decisions, is making a terrible mistake.

The risk of liability in emergency management cannot be eliminated, it is true. At the same time it is important that the manager not freeze in emergencies for fear of this liability. Knowing how liability is determined, the well-prepared manager may use emergency authority to the maximum. The public expects and deserves active, competent managers who are not afraid to do what is needed.

THE TEN GUIDELINES TO MINIMIZE LIABILITY
Fortunately, there are practical approaches to minimize that liability. Even where the statutes confer immunity, the wise manager does not depend on that statute. Here are some good suggestions, proven to work in practice:

  1. Use trained decision makers for emergency decisions. Rely on people with practical as well as educational experience in the kinds of decisions to be made. Match abilities to the level of decisions required.
  2. Use relevant standards. Resist the temptation to guess and experiment. Try to determine the appropriate criteria and measure the decisions against them before making them.
  3. Make informed decisions with objective assessment of risks and benefits. Collect the relevant facts. Apply the appropriate standards. In cases of doubt, apply the correct policy. Make decisions crisp and clear.
  4. Take the time you have to make decisions. Even if the time is tight, take every bit of it. Make no snap judgments except in those situations demanding snap judgments.
  5. Tap the experts for advice. Give them immunity for advice within the scope of their expertise. Be sure to give them the relevant facts, standards, and policy considerations, so as to match their opinions and advice to your needs.
  6. Build a record. Keep a log. Make sure paperwork is preserved, documenting your careful decisions. This will track your actions so that vague reconstruction later will be unnecessary and so that your experiences can be useful precedents for other emergency managers later.
  7. Inform yourself on legal matters. Read the statutes and regulations governing your field of emergency management. Attend useful seminars and courses on a regular basis. Consult attorneys and other professionals on recurring problems, in advance of the next emergency.
  8. Make sure that you have access to an attorney. Ask your attorney if you have legal immunity, at least for your decisions and actions in good faith within the scope of your expertise and official responsibilities. Learn the limitations and conditions of your immunity, and whether you have immunity when you are outside your jurisdiction on mutual assistance. When you are not comfortable with your potential liability, lobby to change the statute under which you operate.
  9. Where the statutes do not make you immune for your decisions, find ways to minimize the risk of legal liability. For example, secure the necessary insurance; get volunteers to submit qualifications in writing; assign volunteers according to ability; use only trained administrators in supervisory positions; give written waivers of liability and descriptions of scopes of services to expert consultants and volunteers; have an attorney knowledgeable in emergency law on call; conduct your own internal training and refresher courses. Draft a manual for emergency management. Have your people certify that they understand it.
  10. Do not let unreasonable fear of legal liability paralyze you and your people. The law creates constraints in order to protect all of us from negligence and wrongdoing, not to prevent your doing what needs to be done. Within those constraints, use your available legal authority to the maximum. The public expects no less. For every duty you have a right; for every limitation, an opportunity. Use your powers comprehensively and creatively.

Notice that these guidelines are not so much legal advice as practical advice. These practical approaches minimize liability because they help avoid negligence, invoke immunity where available, and maximize the chance of winning a lawsuit where decisions do cause injury. In this respect, you have a choice. There are three types of emergency managers: Those who master their powers and duties and "make things happen", those who merely "watch things happen" and hope they don't get worse, and those who wonder afterwards, "what the hell happened?" What type of emergency manager do you choose to be?

 


This article was adapted from a speech given at the National Disasters Conference sponsored by the Association for State Governments at Charleston, South Carolina on November 11-17, 1990.

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