Emergency Planning and Potential Liabilities for State and Local Governments

• Date: 01 December 2007
• Published date: 01 December 2007
• DOI: 10.1177/0160323X0703900105
• Author: William C. Nicholson
• Subject Matter: Original Articles

State and Local Government Review
Vol. 39, No. 1 (2007): 44–56
Emergency Planning and Potential Liabilities
for State and Local Governments
William C. Nicholson
F ederal, state, and local offi cials re- The two drowned when they were not evacu-
ceived considerable criticism in the
ated even though they were on a special needs
aftermath of Hurricane Katrina in Au-
list that was activated under the local parish’s
gust 2005. In particular, pre-Katrina emer-
plan ( Davis 2006). The son of a 91-year-old
gency plans were deemed to be inadequate
woman who survived the storm but died wait-
(Azulay 2005) or executed improperly (Wil-
ing for evacuation has sued the City of New
liams 2005), leading to increased scrutiny of
Orleans and the State of Louisiana (Filosa
planning efforts at all levels of gov ernment
2006). The in creased potential for lawsuits
(Block 2005; Blumenthal 2006; Zink 2005).
means that prudent governments at both the
Government and media attention focused on
state and local levels need to examine closely
the shortcomings of plans, which resulted in
their emergency planning efforts for legal
death, personal injury, and property damage.
suffi ciency.
Those responsible for the plans inevitably
became the targets of legal claims, including
Torts and Immunities
class action suits by those who suffered losses.
The defendants include local governments
To understand the liability claims associated
(Parker 2006). The U.S. Federal Emergency
with Hurricane Katrina, one must understand
Management Agency (FEMA) has been sued
the concept of tort in the context of emer-
for shortcomings in planning its post-Katrina
gency management. Tort refers to civil (in
sheltering program (Washington Post 2006).
contrast to criminal) wrongdoing. The pur-
Lawsuits have been fi led over problems with
pose of tort law is to provide a way for people
evacuation—an important aspect of any emer-
who have been injured by others to obtain
gency response plan. An ambulance company
compensation for the harm. Corporations,
and a local unit of government have been sued
which in the law’s eyes are artifi cial people,
for their failure to evacuate an elderly woman
also can bring a claim and have claims brought
and her quadriplegic son before Katrina hit.
against them for tort damages. Likewise, gov-
ernments that fail to act in a reasonable way
may be sued. Often-cited examples of torts
The content of this article does not constitute legal ad-
include auto accidents, medical malpractice,
vice. Readers should consult an attorney for legal advice
concerning the particular issues they face.
and defamation. Torts can injure property as

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Emergency Planning and Potential Liabilities
well as people. A hazardous materials spill
sibilities. When the components of a legal
that renders a neighboring property unus-
violation that is introduced as proof in a civil
able is an example of a tort against property.
suit are the same as the elements required for
A vital issue is the intent of the person who
civil liability and the burden of proof is the
does (or fails to do) the act giving rise to the
same (or higher for the proven violation), the
complaint. Tort involves three varieties of in-
only issue in a civil trial may be the amount
tent: negligence, gross negligence, and inten-
of damages (Meridian Ins. Co. v. Zepeda, 734
tional wrongdoing. The measure of damages
N.E. 2d 1126 [Ind. App. 2000]).
for tortuous behavior is fi nancial: successful
plaintiffs are awarded money compensation
Gross Negligence
for losses. Particularly egregious conduct by
Negligence is the result of a person failing
the wrongdoer may result in punitive dam-
to act reasonably under the circumstances.
ages, which provide restitution beyond the
Extremely unreasonable actions under the
ac tual losses. Their purpose is twofold: to
circumstances can result in a court fi nding a
punish the specifi c wrongdoer and to deter
person to be grossly negligent. Gross negli-
fu ture similar conduct.
gence is a more elevated level of intent than
simple negligence, and it may be required for
Negligence
liability to be found. Emergency management
The majority of law applicable to daily activ-
law may provide a shield for negligent acts,
ities in the United States arises from the crea-
but gross negligence can result in liability (In-
tion and evolution of a legal model based on
diana Code 10-14-3-15 [2006]). Some states
the facts and law of individual cases. A judge’s
characterize the concept of gross negligence
written opinion is frequently alluded to as
as recklessness.
the law of the case, or precedent. Precedent
applies to all future cases in which the same
Intentional Wrongdoing
issue arises and is an important means by
Intentional wrongdoing is when a per son in-
which new developments may be incorpo-
jures another person or the person’s prop-
rated into law. Common law is developed
erty purposely. Battery, the wrongful touch ing
through judge-made law and precedent.
of another person, is an example of an inten-
The basic theory of the common law prin-
tional tort. It is also a crime that the govern-
ciple of negligence is that every person (natu-
ment may prosecute, possibly subjecting the
ral or artifi cial) has a universal responsibility
wrongdoer to fi nes and/or imprisonment.
to act in a reasonable manner at all times
given the circumstances. If a person acts in
Immunities
an unreasonable manner and that act is the
A common defense to liability for units of
legal (i.e., proximate) cause of an injury to
gov ernment is sovereign immunity, a doctrine
a person or property, the result is liability.
that originated in English law. When appli-
Similarly, failure to act in a reasonable man-
cable, it shields both governments and their
ner may result in liability.
employees from liability when they might
Negligence in the emergency management
otherwise be sued for failure to carry out their
context typically is the result of failure to per-
duties (Lerner 1991). In the context of emer-
form or adequately perform particular gov-
gency management, the greatest challenge
ernmental duties. In the planning context, the
is to balance the needs of different groups
unit of government may be liable because of
against society’s greater interest during emer-
failure to develop or revise the plan properly,
gency situations in which death, injury, or
which effectively constitutes a failure to per-
property damage may result. Sovereign im-
form a duty that is generally accepted as be-
munity provides a liability shield under some
ing part of emergency management’s respon-
circumstances but is not impregnable.
Vol. 39, No. 1, 2007
45

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Nicholson
Disaster response statutes and common
immunity are considered, the statute will be
law provide customary defenses and immuni-
strictly construed in favor of the sovereign
ties for a person working in the capacity of a
and may not be enlarged beyond the waiver
governmental employee. Sovereign immunity
its language expressly requires (United States
once meant that government could never be
v. Nordic Village, Inc., 503 U.S. 30 [1992]).
sued for wrongdoing. Both federal and state
Sovereign immunity normally will apply
governments have expressly waived sovereign
and protect discretionary decisions made by
immunity for tort claims in legal enactments,
government employees and agents to address
and therefore tort immunities do not always
public safety considerations. However, it may
apply (Nicholson 2003a).
not protect the operational activities of em-
The Federal Tort Claims Act (28 U.S.C.
ployees or agents who are engaged in property
§1346b) permits people and corporations in-
control and general services for the health and
jured by the actions of federal employees to
welfare of the citizens. The Supreme Court
bring suit in federal court. The act gener-
opinion in Berkovitz v. United States, 486 U.S.
ally applies to claims (1) for money damages
531 (1988) discusses this issue in depth.
(2) arising from damage to property, personal
injury, or death (3) caused by a negligent or
Duty to Plan
wrongful act (4) of a federal government em-
ployee (5) acting within the scope of his or her
There is a duty both to plan for emergencies
employment, (6) in circumstances in which a
and exercise reasonable care in developing
private person would be liable under state law.
plans. Absent spe cifi c legal requirements, the
In other words, liability laws for acts of fed-
courts will closely examine the facts and cir-
eral agencies directly mirror those of the state
cumstances to determine reasonableness in
in which the act occurred. Thus, immunities
the planning process. Specifi c requirements
for federal and state torts are identical.
for an activ ity such as planning, however, stip-
Immunities are almost never available if
ulate a min i mum standard of care for plan
death, injury, or damages result from conduct
creation (Bind er 2002).
other than negligence, including willful mis-
Planning standards for all hazards are ex-
conduct, gross negligence, wanton disre-
tensive and specifi c and have grown ever
gard, or bad faith by government employees
more so in the aftermath of the terrorist at-
or entities. Indiana law provides that “any
tacks of September 11, 2005. All states have
function under this chapter and any other
enacted laws that...