Today’s burning question: If someone refuses to follow an evacuation order made because a hurricane is approaching, can we be liable if we later refuse to respond to their distress calls in the middle of the storm because they changed their minds?
Answer: Probably not. I would like to say categorically no, but it is possible an unusual case could arise if responders do not act in good faith. Short of bad faith, gross negligence, or recklessness, it is unlikely that responders could be held liable for not responding during a hurricane. Let’s look at the issues in more detail.
The first challenge that a non-evacuee would have in suing responders would be to prove that the responders were somehow negligent for not responding. In other words, the non-evacuees would have to prove the reasonably prudent emergency responders have responded under the circumstances. The non-evacuees are not likely to win there because the reasonably prudent responder would not respond during the middle of a hurricane.
The second challenge the non-evacuees would have to prove is that the emergency responders have a legal duty to respond. Even in the absence of a declared emergency, many jurisdictions adopt what is known as the public duty doctrine which holds that public entities do not owe a legal duty to the general public, be it to respond to fires, emergencies, or deliver other types of governmental services. There are of course exceptions (most notably when a “special duty” is created – but that would not be the case here) and not all states adopt the public duty doctrine.
Even if the non-evacuees got by those hurtles, there would be the challenge of sovereign immunity and statutory immunity protection that many emergency responders have.
But let’s assume that a non-evacuee got past all of those liability hurtles. Is there any other protection that emergency responders have to protect them in such a situation?
As a matter of fact there is, and it would be the proverbial “ace in the hole”. States have adopted emergency management acts that give state and local officials extra powers in times of emergencies. These acts usually go into effect when the governor declares a state of emergency. Among the things that happen when a governor declares a state of emergency is that immunity protection is applied in a blanket manner to all responders.
Take a look at Rhode Island’s law:
RIGL § 30-15-15 Immunity from liability – (a) All functions under this chapter and all other activities relating to disaster response are hereby declared to be governmental functions. Neither the state nor any political subdivision thereof nor other agencies of the state or political subdivision thereof, nor, except in cases in willful misconduct, gross negligence, or bad faith, any disaster response worker complying with or reasonably attempting to comply with this chapter, or any order, rule, or regulation promulgated pursuant to the provisions of this chapter, or pursuant to any ordinance relating to precautionary measures enacted by any political subdivision of the state, shall be liable for the death of or injury to persons, or for damage to property, as a result of disaster response activity.
Immunity protection under such emergency conditions makes alot of sense. Decisions have to be made in disaster situations: who will be saved, who cannot be saved, who will get critical limited resources and who will not. Laws such as RIGL § 30-15-15 provide a clear level of liability protection for emergency managers and responders alike to make those necessary decisions without fear of liability.
Supplementing state emergency management laws are another set of laws enacted by all fifty states called the Emergency Management Assistance Compact or EMAC. EMAC is essentially a state to state mutual aid agreement for disasters. EMAC also provides for immunity protection for responders and state and local officials:
§ 30-15.9-6 Liability. – officers or employees of a party state rendering aid in another state pursuant to this compact shall be considered agents of the requesting state for tort liability and immunity purposes; and no party state or its officers or employees rendering aid in another state pursuant to this compact shall be liable on account of any act or omission in good faith on the part of such forces while so engaged or on account of the maintenance or use of any equipment or supplies in connection therewith. Good faith in this article shall not include willful misconduct, gross negligence or recklessness.
When you consider the liability protection afforded to state and local officials in a declared emergency, rest assured you are on solid legal ground to tell folks who are contemplating staying in place despite an evacuation order: You need to leave now and if you choose not to, we will not come back in the middle of the storm if you change your mind.
For the legal eagles out there, there are a few other defenses….
- Lack of proximate cause (the proximate cause for their injuries was the storm and/or their decision not to evacuate)
- Contributory negligence
- Assumption of the risk
Can you think of any others?