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Liability Issues in Emergency Management

Liability Issues in Emergency Management. Norma Houston Trey Allen NC Emergency Management 2013 Fall Conference October 22, 2013. PART I: General Principles of Gov’t Liability. Grump v. Hazzard County. Plaintiff Donald Grump. Grump v. Hazzard County. Defendant Hazzard County.

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Liability Issues in Emergency Management

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  1. Liability Issues in Emergency Management Norma Houston Trey Allen NC Emergency Management 2013 Fall Conference October 22, 2013

  2. PART I: General Principles of Gov’t Liability

  3. Grump v. Hazzard County Plaintiff Donald Grump

  4. Grump v. Hazzard County Defendant Hazzard County

  5. Grump v. Hazzard County Defendant Daisy Duke

  6. Grump v. Hazzard County Defendant Boss Hogg

  7. Grump v. Hazzard County Defendant Rosco Coltrane

  8. Grump v. Hazzard County Defendant Enos Strate

  9. Sources of Liability • U.S. Constitution & N.C. Constitution • Federal & state statutes • Tort law

  10. Sources of Liability: Constitutional Rights • Right to Due Process • Right to Just Compensation for Property Taken for Public Use

  11. Sources of Liability: Tort Law • Tort = wrongful conduct (other than a breach of contract) for which a victim may be entitled to recover money damages in a civil action. • Most torts originate in common law. • Employer liability for harm caused by employee?

  12. Sources of Liability: Tort Law (cont’d) • Negligence = failure to exercise degree of care that reasonable person would under the same or similar circumstances.

  13. Sources of Liability: Tort Law (cont’d) Elements of Negligence • Duty of Care • May be imposed by statute • May be imposed based on status • May be imposed by special relationship • Breach of Duty • Injury Proximately Caused by Breach • Harm to plaintiff must have been “foreseeable.”

  14. Sources of Liability: Tort Law (cont’d) Negligent Hiring, Supervision, Retention = • specific tortious act by the employee; • the employee's incompetence or unfitness; • the employer's actual or constructive notice of the employee's incompetency or unfitness; • injury resulting from the employee’s incompetency or unfitness.

  15. Sources of Liability: Tort Law (cont’d) • Assault = intentional placing of a person in reasonable apprehension of imminent harmful or offensive contact.

  16. Sources of Liability: Tort Law (cont’d) • Negligent Misrepresentation = plaintiff justifiably relies on information prepared without reasonable care by one who owed the plaintiff a duty of care.

  17. Common Defenses to Intentional Torts • Consent • Statute of Limitations • Self-defense or defense of others

  18. Common Defenses to Negligence Claims • Contributory Negligence • Intervening Cause • Statute of Limitations

  19. Governmental Immunity • The Doctrine of Governmental Immunity bars tort claims against local gov’ts arising from negligence or intentional misconduct of their personnel in performance of governmental functions. • It does not bar tort claims for injuries arising from proprietary functions.

  20. Governmental Immunity

  21. Governmental Immunity (cont’d) • Governmental v. Proprietary Functions • Governmental function = discretionary, political, or legislative in nature; performed for the public good on behalf of the State. • Proprietary function = commercial or chiefly for the private advantage of the compact community.

  22. Governmental Immunity (cont’d) • Sample Governmental Functions • Sample Proprietary Functions

  23. Governmental Immunity (cont’d) Local gov’t may waive governmental immunity by • Purchasing liability insurance or • Participating in governmental risk pool.

  24. Public Duty Doctrine • General rule = Gov’t has no duty to protect specific individuals. • For local gov’t, Public Duty Doctrine applies to negligence claims over the failure of law enforcement to protect claimants from third parties. • Doctrine also applies to county agencies serving as state’s agent for particular function.

  25. Official Capacity v. Individual Capacity • Official capacity claim = claim against unit of gov’t. • Individual capacity claim = claim directly against public official or employee.

  26. Public Official Immunity • Doctrine bars tort claims against “public officials” in their individual capacities for acts undertaken within the scope of their duties unless they act maliciously or corruptly. • Doctrine does not protect public employees.

  27. Public Official Immunity (cont’d) • Public official • Office created by constitution or statute • Takes oath of office • Exercises discretion in performance of duties • Exercises sovereign power of state • Public employee • Duties are ministerial in nature

  28. Public Official Immunity (cont’d) Examples of Public Officials

  29. Public Official Immunity (cont’d) Examples of Public Employees • Street sweepers • Social workers • Emergency medical technicians • Public school teachers

  30. Other Immunities (cont’d) • General Assembly has by statute created immunities for certain groups in specific circumstances. • Emergency management workers • Public school personnel • Members of volunteer fire dep’t or rescue squad.

  31. Defense of Local Gov’t Personnel • Payment of employee’s legal costs • Payment of judgment against employee

  32. Claims NO NO NO NO N/A NO N/A N/A Defendants NO NO YES N/A NO N/A N/A NO N/A N/A NO N/A

  33. PART II: Liability Issues in Emergency Management

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