Legal Issues in Emergency Services

Legal Issues in Emergency Services Developed as part of the National Emergency Services Curriculum Project

COMMUNICATION IS THE KEY This presentation will not answer all of your questions about liability, BUT your local legal counsel CAN

The Threat • Case Filings are generally increasing • Claims against the government are dramatically increasing • Plaintiff chances of winning are increasing • Award sizes have increased

Deep Pockets • Government bodies of all types are assumed to have DEEP POCKETS and are believed to be able to pay large settlements and awards • Civil Air Patrol is seen this way though we are a non-profit corporation in reality

Tort Liability • Tort • An action that harms another person, business or group • Occurs when a person or group of people act, or fail to act, without right, and thus harm another directly, or indirectly

Tort Liability Continued • Strict Liability • Violation of the law or other regulations, even if violation is unintentional • Intentional Liability • Known violation of the law or other regulations and harmful results • Breaking Traffic Laws

Tort Liability Continued • Negligent Liability • Person fails to do what a reasonable and prudent person would have done under the same or similar circumstances • Basic First Aid • Warrant Liability • Promised service level is not delivered and harm results • Failure to support MOUs

Tort Liability Continued • Civil Rights Liability • Constitutional rights are violated • Physically restraining public from entering accident site

Elements of Liability • Four elements must be present to prove liability: • Duty or standard to act • Breach of duty - either an action or omission • Failure caused the harm • Actual measurable loss or harm

DUTY TO PERFORM Existence of duty establishes standard of conduct

FAILURE TO PERFORM Breach of the duty required to prove negligence

FORESEEABLE CAUSE Failure to perform duty results in direct or indirect harm

Harm • There must be a measurable harm caused through: • Damage to property • Physical injury • Mental anguish

ELEMENTS OF LIABILITY All four elements MUST be present to prove that liability exists

GOVERNMENT IMMUNITY Sovereign Immunity has been steadily eroding since the 1960s

Types of Immunity • Absolute • Discretionary • Qualified • Statutory

Absolute Immunity • Absolute immunity is enjoyed by very few officials: • United States President • Judges

DISCRETIONARY IMMUNITY Covers the formation of policy, not its implementation

STATUTORY IMMUNITY Created by legislation - “Good Samaritan” provisions

Qualified Immunity • Sometimes known as “Limited Immunity” • Often Statutory in nature • Requires certain actions to be taken prior to filing a suit

IMMUNITY You may be required to prove, in court, that your actions are immune

How Liability May Arise • Problems with PLANNING • Poor Plans • Out-of-date plans • Unrealistic plans • Problems with TRAINING • No training • Undocumented training • Unsafe training

How Liability May Arise Continued • Problems with NOTICE • Hazards not identified • Hazards not prioritized • Hazards ignored • Problems with duty to WARN • Warnings not given • Improper warnings given • Warning systems not fully utilized

How liability May Arise Continued • Problems with NEGLIGENT OPERATION • Equipment not employed properly • Plans/procedures not followed • Equipment not maintained • Problems with VICARIOUS LIABILITY • Personnel not trained • Standards not present and/or enforced

How Liability May Arise Continued • Problems with INVERSE CONDEMNATION • May not be applicable to all jurisdictions • When harm is identified, provide quick remedial action • Problems with ATTRACTIVE NUISANCE • Remember Murphy’s Law • Take special precautions • Be aware of children’s actions

Standard of Care • Always changing for any community • Standard of Care five years ago, may not apply today

Standard of Care Continued • Considerations in determining Standard of Care include: • Cost/Benefit analysis • Capabilities of in-place systems • Capabilities of similar systems • Court decisions/rulings • What is reasonable under the same or similar circumstances?

STANDARD OF CARE Continued You must work to keep current in your field to meet changing requirements

Working with Legal Counsel • Your local attorney can help define and limit liability • Maintain regular contact with your legal counsel. There should be ongoing, effective communication • Local legal staff should be an integral part of the planning and response systems

Aircraft Crash Laws • The National Transportation Safety Board (NTSB) is responsible for the investigation and determination of probable cause in aircraft accidents, as well as keeping a public record of the same. • Title 49 of the US Code • Additional guidelines available in FAA regulations and CAP Safety Regulations

Trespassing • AFRCC can’t authorize ground teams to enter private property • Get Law Enforcement Assistance or Owner’s Permission or BOTH • You have no more rights than a regular citizen • ELT signal is not necessarily cause for entry

Assault & Battery • BE NICE - You are never authorized to use force in executing your duties. • Don’t yell at, push, shove or otherwise restrict people from entering crash sites/crime scenes; that is a law enforcement job • Remember that everything you do on a CAP mission reflects not only upon yourself, but every other member of the organization

Summary • Liability issues are complex and varied • Workshop should raise more questions, than to provide answers • Answers to questions are available through your local legal counsel • Success will depend on the follow-up actions you take in the next few days

Legal Tasks • Anything that you do as a member of the Civil Air Patrol Emergency Services Team could have legal ramifications. • Stay alert and aware • Operate within the law • Operate within CAP Regulatory Guidance • Do your job as you have been trained, if you do that, we don’t normally have any problems

QUESTIONS? THINK SAFETY

Legal Issues in Emergency Services