A Practical Look at Legal Issues in Emergency Management


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 William Moorehead, President, All Clear Emergency Management Group
Using situational analysis, participants will learn to identify common legal issues in emergency
management and how to enhance response through agreements. This session will examine common
legal issues encountered within emergency management and emergency response including liability and
the formation of mutual aid agreements. The audience will analyze hypothetical scenarios and news
stories to identify potential liability issues. The session will highlight the challenges and barriers to
implementing agreements, benefits of prepositioned contracts, and the importance of putting agreement
in place now before they are needed. The goals of the session are to review the fundamentals of
liability, examine common legal issues, discuss best practices, and analyze situations common in
emergency management.

Published in: Business, Health & Medicine
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A Practical Look at Legal Issues in Emergency Management

  1. 1. A Practical Look at Legal Issuesin Emergency ManagementApril 27, 2011Partners In EmergencyPreparedness Presented by: William M. Moorhead, JD
  2. 2. Administrative Issues• Questions Q• Participation• Disagreement• Test• Collective Experience
  3. 3. Experience• Agency involvement in a legal issue?• Attended simila t aining? similar training?• Experienced a “near miss” situation? p
  4. 4. Goals• Review the fundamentals of liability y• Examine common legal issues• Discuss best practices• Analyze situations
  5. 5. Objectives• Define liability and discuss how it can be incurred• Recognize principles of Standard of Care• Review basic legal issues within common situations
  6. 6. Topics• The systems of laws• Overview of liability• Contracts/MOUs/Agreements• Who is in charge• FOIA• Case studies
  7. 7. Incident Study•EEmergency exercise corrective action i ti ti• Emergency response vehicle accident g y p• Under-utilized assets during a disaster
  8. 8. The Threat• Case filings increasing• Claims against government are dramatically increasing• Plaintiff’s chances of winning are Plaintiff s increasing•AAward sizes h d i have i increased d
  9. 9. Deep Pockets• Government bodies assumed to have deep pockets ▫ Faceless ▫ “I paid” I paid ▫ Revenge
  10. 10. The System of Laws• Law vs. Regulation• Federal Law• State Law• Local Law/Ordinance• Federal/State Guidelines• Organization Guidelines/Rules• Court Decisions
  11. 11. Liability A Preview• Define Liability• Four Elements• Standard of Care• Practical Considerations
  12. 12. Tort Action h harms another person, A i that h h 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.
  13. 13. Tort Liability• Strict Liability ▫ Always liable• Intentional Liability ▫ Known violation• Negligent Liability ▫ Reasonable Man Standard• Warrant Liability ▫ Promised service not delivered• Civil Rights Liability ▫ Constitutional Rights violated
  14. 14. Elements of LiabilityFour Elements must be present• Duty or standard to act• Breach of duty (act or omission)• Cause of injury from breach• Injury that is measurable
  15. 15. Liability• DUTY ▫ What is a Duty?  Existence of duty establishes standard of conduct ▫ Where does the Duty come from?  Laws/guidelines/other
  16. 16. Liability• Breach ▫ Was the duty fulfilled? ▫ Breach by omission or commission? ▫ Breach required for negligence
  17. 17. Liability• Cause ▫ Causal connection between breach and injury ▫ Did the failure to perform duty result in direct or indirect harm?
  18. 18. Liability• Injury ▫ Measurable harm caused by damage  Property, physical injury, mental anguish ▫ There must be an injury
  19. 19. Liability All four elements must be present to prove that liability exists
  20. 20. Incident Study• Recruit Dies in Training• Child Dies in House Fire After House Checked by Firefighters• Assets improperly allocated during community-wide disaster y
  21. 21. Standard of Care• What does it mean?• Where does it come from?• Who does it apply to?• How often does it change?
  22. 22. Standard of CareConsiderationsC id ti• Cost/Benefit Analysis / y• Capabilities of in-place systems•CCapabilities of similar systems biliti f i il t /• Court decisions/rulingsg
  23. 23. Standard of CareInfluenced by•F d l Federal ▫ Documents/suggestions/standards• National ▫ Standards organizations/groupsAre you current?What is reasonable under same or similar circumstances?
  24. 24. Incident Study• Thermal Imager• AED• Training
  25. 25. What can you be sued for?
  26. 26. Practical Considerations• Planning ▫PPoor plans l ▫ Outdated plans ▫ Unrealistic plans• Training ▫ No training g ▫ Undocumented Training ▫ Unsafe Training
  27. 27. Practical Considerations• Problems with Identification of Hazards ▫HHazards not id ifi d d identified ▫ Hazards not prioritized ▫ Hazards ignored• Problems with Duty to Warn ▫ Warning not given ▫ Improper warnings g p p g given ▫ Warning systems not fully utilized
  28. 28. Practical Considerations• Problems with Negligent Operations ▫E i Equipment not employed properly l d l ▫ Plans/procedures not followed ▫ Equipment not maintained• Problems with Vicarious Liability ▫ Personnel not trained ▫ Standards not present/enforced p /
  29. 29. Practical Considerations• Problems with Attractive Nuisance ▫ Remember Murphy’s Law ▫ Take special precautions ▫ Be aware of children s actions children’s
  30. 30. Potential Liability• What are some specific issues that could create li bilit f emergency managers, t liability for first responders, or other emergency response agencies?i ?• What are some specific issues that could create liability for the leadership within emergency-related agencies? l d
  31. 31. Wednesday, December 08, 2010 UCLA Stabbing Victim Files Lawsuit Against UC RegentsA UCLA student who was stabbed by her mentally illclassmate in a chemistry lab on Oct. 8, 2009, hasfiled a lawsuit against the University of Californiaregents and her attacker. Katherine R t dh tt k K th i Rosen claims l ifaculty and university administers were aware ofDamon Thompson s violent tendencies but did not Thompsonstake the necessary steps to protect her.
  32. 32. Wednesday, November 24, 2010 Court Allows Va. Tech Officials to Be Sued Over ShootingsVirginia Tech President Charles Steger and formerExecutive Vi P id t JE ti Vice President James H tt d not qualify f Hyatt do t lif forabsolute immunity to civil liability claims. This decision,which was rendered by Spec a Jus ce William Alexander c as e de ed Special Justice a e a deof Franklin County, means that two $10 million wrongfuldeath lawsuits filed by the families of students slain in theApril 16,A il 16 2007 shooting at Vi i i T h could go t t i l h ti t Virginia Tech ld to trialas soon as September.
  33. 33. Va Tech critics frustrated by report response y p pBy LARRY ODELL - Dec 10, 2010 3:59 PM ETBy The Associated PressRICHMOND, Va. (AP) — Critics of how Virginia , ( ) gTech handled the 2007 campus massacre saidFriday they are frustrated but not surprised that theuniversity still refuses to acknowledge mistakes,despite a federal report that concludes officialsbroke the law by failing to promptly warn students agunman was on the loose.
  34. 34. Government ImmunitySovereign Immunity has been steadily eroding since the 1960s. Every state in the union and their y municipal sub-units are subject to various forms of liability liability.
  35. 35. Statutory Immunity• Created by legislation ▫ Good Samaritan provisions ▫ Legislated immunities ▫ All are limited• Proof may be required• Does not equal reckless
  36. 36. Contracts and MOU• Wh t is a contract? What i t t?• What is a MOU?• What are the practical considerations when entering into either of these?
  37. 37. Contract/MOU Considerations• Who are the parties entering into the agreement? t?• What will the agreement ask or require each party to do?• Does each party have the authority to enter p y y into the agreement or fulfill the obligations?• Are there legal hindrances (i e states can t (i.e. can’t utilize indemnity clauses)
  38. 38. Contract/MOU Considerations• What is the process for utilizing the MOU?• Can someone unfamiliar with the MOU utilize the MOU?• Do you review and update your MOUs MOU regularly? l l ?
  39. 39. Who is in Charge• What are the roles of the Federal, State, and local governments?• What are the responsibilities of the first responders?• What authority d h h i does a mayor, the h governor, or the President have during a disaster?
  40. 40. FOIA• Open meetings• Post/advertise notification of meetings• Make information available• Exemptions for investigations, employment matters, and miscellaneous matters other items• Conduct business in formal meetings only
  41. 41. Legal Assistance• Legal Counsel (City or County Attorney)• Attorney General’s Opinions• Associations and Groups
  42. 42. Summary• L l issues can be complex and Legal i b l d varied• There should be more questions than answers
  43. 43. Contact All Clear Emergency Management Group www.AllClearEMG.com Will M h d Moorhead WillM@AllClearEMG.com 336-802-1800