Description Put each part in a separate Word file Part 1 For this assignment, you will write a 2- ...
Description Put each part in a separate Word file Part 1 For this assignment, you will write a 2-3 page paper that explores the legal aspects of managing a catastrophic incident. Instructions: Read the following document: Liability Issues in Emergency Management for North Carolina Emergency Managers (attached down) In your paper, address the following: Pick one aspect of liability in the NCLG to analyze Describe the assumptions that you think are being made What might be the premise for the way it is written? Is it functional? Why or why not? What do think were the drivers and the thought processes for planning in this manner? Format: All papers should be formatted according to the following: Times new roman 12 point font 1.5 spacing No more than 3 pages Citing Sources: Sources should be cited properly using the APA style. Evaluation Criteria: Your papers will be evaluated using the following criteria: Thesis: How well you present an insightful thesis that demonstrates mastery of material and creative thought Organization: How logical the organization and sequence of the answers are Subject Knowledge: How well you demonstrate understanding of the knowledge needed to answer the question Analysis: How creative and insightful your analysis of the question is and how logical your conclusion is Source: https://www.sog.unc.edu/sites/www.sog.unc.edu/file... Part 2 Write a reflection to address the following in 2-3 paragraphs, integrating the knowledge you have gained during this week: What are the political considerations and barriers that impact our efforts to plan for more resilient places that are socially just, economically vital, ecologically compatible and less vulnerable to future catastrophes? UNFORMATTED ATTACHMENT PREVIEW 2011 LIABILTY ISSUES IN EMERGENCY MANAGEMENT FOR NORTH CAROLINA EMERGENCY MANAGERS NC Division of Emergency Management UNC School of Government Acknowledgements This guide was developed collaboratively by the North Carolina Division of Emergency Management, the North Carolina Emergency Management Association, and the UNC-Chapel Hill School of Government. The authors wish to thank Ms. Kandace Davis, UNC School of Law JD 2012, and Mr. Jake Pflepsen, UNC School of Government MPA 2012, for their assistance in research, editing, and authorship of various sections of this guide. The authors also wish to thank the following for their thoughtful contributions: Sharon Scudder NC Association of County Commissioners Bill Gentry UNC-CH Gillings School of Global Public Health Sandy Sanderson Dare County Emergency Management Mike Patterson The Salvation Army – North & South Carolina Authors: Derrick Remer North Carolina Division of Emergency Management Norma Houston UNC School of Government Purpose of this Guide This guide accompanies the North Carolina Emergency Management Certification Program Course Liability Issues in Emergency Management (G-305.11). The certification program is authorized pursuant to Article 5 of Chapter 166A of the North Carolina General Statutes. North Carolina emergency managers participate in the certification program on a voluntary basis. This guide is not intended to serve as a definitive authority on liability issues and should not be relied on exclusively for legal advice. Emergency managers should always consult with their jurisdiction’s legal counsel for legal advice on specific issues. Table of Contents Section I. Introduction .................................................................................... 1 Section II. General Overview .......................................................................... 3 Key Concepts ................................................................................................................................... 3 What is Liability? ........................................................................................................................... 3 How Does Someone Become Liable? ..................................................................................... 4 Section III. Sources of Legal Rights: Constitutions & Statues .............. 7 Key Concepts ................................................................................................................................... 7 Constitutional Rights ................................................................................................................... 7 Freedom of Speech and Political Affiliation ................................................................... 8 Due Process ................................................................................................................................. 8 Freedom from Unreasonable Searches and Seizures ................................................. 9 Cruel and Unusual Punishment........................................................................................... 9 Statutes .............................................................................................................................................. 9 Federal Statutes......................................................................................................................... 9 State Statutes ........................................................................................................................... 10 Section IV. Sources of Legal Rights: Common Law Liability ............. 11 Key Concepts ................................................................................................................................ 11 Intentional Torts ......................................................................................................................... 12 Battery ....................................................................................................................................... 12 Assault........................................................................................................................................ 13 False Imprisonment .............................................................................................................. 13 Negligence ..................................................................................................................................... 14 Strict Liability .............................................................................................................................. 15 Negligence – Governmental Duty Issues ........................................................................... 15 Public Duty Doctrine ............................................................................................................ 15 Negligent Entrustment ........................................................................................................ 16 Negligent Employment and Retention .......................................................................... 17 Section V. Defenses Against Liability ....................................................... 18 Key Concepts ................................................................................................................................ 18 General Tort Defenses – Intentional Torts ....................................................................... 18 Consent ...................................................................................................................................... 19 Self-defense and Defense of Others ................................................................................ 19 Statutes of Limitations ......................................................................................................... 19 General Tort Defenses – Negligence ................................................................................... 20 Contributory Negligence ..................................................................................................... 20 Assumption of the risk......................................................................................................... 20 Statutes of limitations .......................................................................................................... 21 Governmental Liability Defenses ......................................................................................... 21 Defenses Against Official Capacity Actions .................................................................. 21 Defenses Against Individual Capacity Actions ........................................................... 25 Section VI. Special Liability Protections in North Carolina: Statutory Immunity for Emergency Management................................................... 29 Key Concepts ................................................................................................................................ 29 NC Statutory Immunity for Emergency Management .................................................. 30 What Is Covered? ................................................................................................................... 30 What Is NOT Covered? ......................................................................................................... 32 What Does The Immunity Statute Protect From? ..................................................... 33 Who Is Covered (General Coverage)? ............................................................................ 34 Who Is Covered (“Emergency Management Worker”)? ......................................... 35 When are “Emergency Management Workers” Covered? ..................................... 37 Special Conditions for Firms and Corporations ......................................................... 38 Waiver of Licensure Requirements ................................................................................ 40 Continued Entitlement to Certain Benefits ................................................................. 41 Immunity for Private Property Used During Disasters ............................................... 41 Liability of Persons Who Ignore Disaster Warnings..................................................... 42 Section VII. Volunteers .................................................................................. 44 Key Concepts ................................................................................................................................ 44 Federal Law – Volunteer Protection Act (VPA) .............................................................. 45 State Law – Qualified Liability Immunity for Volunteers ........................................... 46 Other Related Immunity Statutes ........................................................................................ 48 Good Samaritan Law ............................................................................................................ 48 First Aid and Emergency Medical Treatment ............................................................. 48 Managing Volunteers ................................................................................................................ 49 Know “Who” ............................................................................................................................ 50 Know “How”............................................................................................................................. 52 Section VIII. Legal “Mitigation”: Protecting Against Liability .......... 54 Insurance ....................................................................................................................................... 54 Documentation ............................................................................................................................ 55 Training Standards .................................................................................................................... 55 Valid Contracts ............................................................................................................................ 56 Legal Mitigation Checklist............................................................................ 58 Section IX. Conclusion ................................................................................... 59 Appendix A: Selected NC Statutes .............................................................. 60 “What Do You Think” Citations .................................................................. 64 Section I. Introduction Hurricanes, flooding, tornadoes, and mudslides are some of the many hazards an emergency manager in the State of North Carolina may face on a yearly basis. In fact, the State of North Carolina has so many emergencies that our emergency managers have become quite proficient at preparing for, responding to, and recovering from these disasters. Our state has Urban Search and Rescue Teams, Public Assistance Teams, National Guard Force Packages, and multiple other resources that can be made available to local emergency managers in a matter of hours. This system works well in helping the citizens of the state. With all the planning and preparing for disasters of consequence, many emergency managers do not have the time to think about the legal consequences of their actions, especially in the immediate aftermath of a disaster event. The law can be quite complex, and with the constant updates to legislation, changes in policies and procedures, and the ever expanding definition of who a “first responder” is, it is apparent why many emergency managers have asked for guidance on potential legal risks and liabilities. Because the area of liability law is not only complex, but also often very fact-specific, this guide cannot address every possible question or scenario of potential liability that may arise. Instead, this guide gives an overview of the liability and immunity laws that apply to emergency management in North Carolina, and provides guidance on where answers to specific questions can be found. It is important that local emergency managers and first responders seek the advice of their legal counsel on potential liability issues. While this guide provides a broad overview of the general areas of liability law, the answers to specific questions oftentimes turn on the facts of a particular situation or scenario. Local emergency 1 managers and first responders should not rely solely on the information contained in this guide for definitive legal guidance, but instead should consult with their own legal counsel to ensure they are in full compliance with the law and can take appropriate steps to mitigate against potential liability for themselves and their unit of government. 2 Section II. General Overview Key Concepts ? Liability is the legal obligation to compensate a person who has been injured or suffered harm as a result of another person’s wrongful actions or failure to act when legally required to do so. ? Public officials can face liability under federal and state constitutions, federal and state statutes, and “common law” (law created by judicial opinions). ? The plaintiff is the person who makes a claim that his rights have been violated and that he has suffered harm as a result. ? The person or group of people against whom the plaintiff makes his claims is the defendant(s). ? Law suits can be brought against public officials in their governmental (official) capacity, individual (personal) capacity, or both. ? The plaintiff can recover three types of damages: nominal, compensatory, and punitive. Like the emergency management field, the legal field has its own terminology that can be difficult to understand. This section provides a general overview of what liability1 is and the process through which someone can become liable. What is Liability? Simply put, liability is the legal obligation to compensate a person who has been injured or suffered harm as a result of another person’s wrongful actions or failure to act when legally required to do so. If the wrongdoer is found to have violated the victim’s legal rights and the victim suffered injury or harm as a result, the wrongdoer is “liable” to the victim and must compensate him for his injuries and losses unless the wrongdoer has a valid legal defense for his actions or is immune (shielded) from liability. 1 For purposes of this guide, the term “liability” refers to civil liability. 3 There are three main areas of the law under which a public official or employee can face liability: (1) federal and state constitutions (2) federal and state statutes (laws enacted by legislative bodies such as the U.S. Congress and the N.C. General Assembly) (3) the common law (commonly referred to as “tort law”) Some situations can involve violations of both state and federal laws. While a victim can only recover (get compensated) once for the injury he has suffered, he can potentially recover under federal and state laws if the wrongdoer’s actions violate both. Constitutional and statute sources of liability are discussed in Section III of this guide; common law (torts) liability is discussed in Section IV. How Does Someone Become Liable? Whether someone is liable to another person is usually determined through civil (non-criminal) litigation (lawsuits or related demands for compensation such as administrative proceedings). In civil litigation, the injured person (plaintiff) files a law suit against the wrongdoer (defendant) in state or federal court seeking compensation for the injury, harm, or loss suffered (damages) as a result of the wrongdoer’s actions or omissions (failure to act). 4 The plaintiff is the person who makes a claim that his rights have been violated and that he has suffered harm as a result. A plaintiff can be an individual, a group or individuals (class actions), or entities such as corporations, businesses, or other organizations. A plaintiff can bring a claim against a single individual, any number of individuals, or entire organizations and entities. The people or groups defending themselves against the plaintiff’s claims are called defendants. Law suits can be brought against public official defendants in their governmental (official) capacity, individual capacity, or both. A plaintiff can sue a government unit itself or officers and employees in their official capacity. A suit against officers and employees in their official capacity is, in essence, a suit against government itself because the unit of a unit of government acts through its officers and employees. A suit can also be brought against individual officers and employees in their individual capacities, meaning that the plaintiff seeks to recover damages (compensation) from them personally. Cities and counties in North Carolina are authorized, 5 although not required, to What Do You Think? Following the cataclysmic terrorist attacks of September 11, 2001, between 40,000 and 90,000 professional rescuers and volunteers responded to an unprecedented rescue and recovery effort at the World Trade Center site. In the immediate aftermath, many of the responders, save for those employed by public agencies and professional volunteer organizations, were ordinary citizens. Men and women from around the New York City region, and around the country, rushed to what became known as Ground Zero. Local recovery workers, primarily unionized tradesmen, gradually replaced the first responders. Some of these workers have since died, and many have contracted serious illnesses from their time on “the pile.” 600 firefighters have been forced into retirement, and a quarter of FDNY and EMS personnel have since developed lung conditions. The collapse of the Twin Towers released a cloud of fine particulate matter, cement dust, glass fibers, asbestos, lead, hydrochloric acid, PCBs, and other toxins. Underground fires at the site were not extinguished until December 2001. Officials certified that air quality in lower Manhattan was safe soon after, and pictures from the site show inconsistent respirator usage among recovery workers. The World Trade Center Medical Monitoring and Treatment Program was established the following year, and has produced significant research documenting both the high occurrence of both psychological and respiratory issues. (Colanglelo, Auliff, & Siemaszko, 2006) Who is liable for the care of these disaster workers? provide for defense of current and former officers and employees.2 North Carolina law also authorizes (but does not require) local governments to pay judgments on behalf of their employee defendants3. When filing a suit, a plaintiff can ask for recovery of three types of damages. Nominal damages are awarded when there is a technical violation of the plaintiff’s legal rights that does not include actual damages. Compensatory damages are compensation for actual losses suffered by the plaintiff and are awarded to restore the plaintiff to his pre-harm condition. Compensatory damages include compensation for direct personal injury (such as medical expenses), direct damages to or loss of property, and economic losses (such as lost wages or pain and suffering). Punitive damages act as punishment of the defendant and to deter the defendant and others from committing similar wrongful acts in the future. Punitive damages are difficult to win against the government and are more likely to be recovered against officers or employees in their individual capacities. In North Carolina, punitive damages are capped at $250,000 or three times the amount of actual damages, whichever is greater, and requires a finding of fraud, malice, or willful and wanton conduct.4 In addition to claims for recovery of damages, a plaintiff can also ask for a declaratory judgment under which the court orders that the defendant either take certain actions or refrain from taking certain actions to protect the plaintiff’s legal rights. A declaratory judgment may at times prevent future litigation by clearly defining each party’s responsibilities. 2 G.S. 160A-167; G.S. 153A-97. 3 Id. 4 G.S. 1D-15; G.S. 1D-25. 6 Section III. Sources of Legal Rights: Constitutions & Statues Key Concepts ? Constitutional rights are rights that are guaranteed under the U.S Constitution. or a state constitution. ? Statutory rights are rights created by laws enacted by Congress or a state legislature (such as the North Carolina General Assembly). In order to avoid violating an individual’s legal rights (which may result in liability), it is important to first understand where these legal rights come from. This section provides a brief overview of sources of legal rights under constitutions and statutes. Section IV of this guide describes common law (torts) legal rights. Constitutional Rights A constitution is the basic charter of our federal and state governments. Constitutions set limits on governmental power and guarantee certain individual rights that many not be infringed upon. Violations of an individual’s constitutional rights may result in liability. A plaintiff can allege violations of both federal and state constitutional rights. Section 1983 of the Civil Rights Act of 18715 authorizes a person to sue state and local governments and their officials and employees for certain violations of that person’s federal constitutional rights. Under this law, a person may recover damages against the state or a local government or its governing board members, officials, and employees. 5 42 U.S.C. § 1983 (1988). 7 Some common constitutional claims that are relevant in the context of emergency management include the rights of free speech, due process, and freedom from unreasonable searches and seizures. Each of these constitution rights is discussed below. Freedom of Speech and Political Affiliation The First Amendment to the U.S. Constitution protects an individual’s freedom of speech. The word “speech” generally includes the right to say what you want when you want, subject to certain limitations. It also includes “unspoken” speech, such as art, music, internet communications, and clothing. Freedom of speech is one of the most fundamental rights under our federal Constitution, but it still has some important restrictions, including libel, slander, obscenity, and criminal conduct such as bribery, perjury, or incitement to riot. Due Process The Fourteenth Amendment to the U.S. Constitution guarantees the right of due process. Due process is the set of procedures that the government must follow before depriving someone of their life, liberty, or property. What constitutes “life, liberty or property” is fairly broad. For example, generally speaking, the government cannot take private property without just compensation. A condemnation action by a city or county requires a number of procedural protections for the property owner that must be satisfied before the government can take the person’s property. Normally, except in the case of emergencies, procedural due process generally requires an opportunity for a hearing to be held before the government can take away a constitutionally protected interest.6 6 Anita R. Brown-Graham, A Practical Guide to the Liability of North Carolina Cities and Counties, 7-5 (Chapel Hill: Institute of Government: The University of North Carolina at Chapel Hill, 1999). 8 Freedom from Unreasonable Searches and Seizures The Fourth Amendment to the U.S. Constitution grants the right of freedom from unreasonable searches and seizures. Search and seizure is the process by which a law enforcement officer or any other authority figure who suspects that a crime has been committed conducts a search of a person’s property and confiscates any relevant evidence pertaining to the crime that might have been committed. An example of a due process violation is a police officer arresting an individual without probable cause. Since an arrest is considered to be one type of seizure, the person arrested could claim that his Fourth Amendment rights were violated. Similarly, if an officer conducts a search of a person’s property without a warrant absent legally recognized justifications, the officer may have violated that person’s Fourth Amendment rights. Cruel and Unusual Punishment The Eighth Amendment prohibits the government from imposing excessive bail, excessive fines, and cruel and unusual punishment. How prisoners are treated in isolation and jails is a common basis for Eighth Amendment claims. Statutes A statute is a formal enactment of the legislative branch of government. Federal statutes are acts of Congress, and North Carolina state statutes are acts of the North Carolina General Assembly - both can give rise to liability. Most commonly, a statute will prohibit a specific action, impose a specific duty or obligation, or declare public policy that, if violated, may result in liability. Federal Statutes Section 1983 of the Civil Rights Act of 1871, which was discussed above, also authorizes a party to sue state and local governments and their officials and employees for violations of rights created by other statutes in addition to those rights established by constitutions. For example, the Americans with Disabilities Act (ADA) prohibits discrimination on the basis of disability. Plaintiffs in one case, who 9 included disabled Tennesseans, successfully sued over their lack of access to the upper levels of state courthouses arguing that the state was denying them access to public services because of their disabilities in violation of the ADA.7 State Statutes Statutes enacted by the North Carolina General Assembly can create liability if the statute imposes a specific duty or obligation on a unit of government or specific governmental officers or employees. For example, North Carolina’s open meetings and public records laws require much of the business of state and local government to be conducted openly and available to the public. Under the state’s open meetings laws, public bodies, such as Boards of County Commissioners and City Councils, must conduct the public’s business in open session unless they are specifically authorized to go into closed session.8 Under the state’s public records laws, most government documents must be made available to the public.9 Failing to comply with these legal mandates can result in liability for the government. 7 Tennessee v. Lane, 541 U.S. 509 (2004). 8 G.S. Chapter 143, Article 33C. 9 G.S. Chapter 132. 10 Section IV. Sources of Legal Rights: Common Law Liability Key Concepts ? A tort is a civil (not criminal) wrong for which a plaintiff files a lawsuit seeking compensation for injuries or damages suffered as a result of another person’s wrongful acts or omissions (failure to act). ? An intentional tort is a wrongful act that was committed intentionally or willfully and results in injury or harm to the victim. ? Negligence is the failure to exercise the degree of care that a reasonable and prudent person would exercise under similar conditions and that results in injury or harm to the victim. ? Strict liability is imposed even when there is no intentional tort or act of negligence; merely performing the act that results in injury or harm to the victim will result in liability. ? The public duty doctrine is a legal theory under which the government holds a general duty to the public at large, not to individual citizens; while applicable in local government law enforcement cases, it is not clear whether the courts would apply this doctrine in emergency management situations. ? Liability can arise in situations involving negligent hiring, negligent retention, and negligent entrustment. Common law is the law that comes from judicial decisions – “case law” and “precedent.” Tort law is the main common law area of concern of emergency managers. A tort is a civil (not criminal) wrong which is recognized as grounds for a lawsuit seeking compensation for injury or damages resulting from another person’s wrongful acts or omissions (failure to act).10 There are three basic types of common law torts: intentional torts, negligence, and strict liability. 10 Anita R. Brown-Graham, A Practical Guide to the Liability of North Carolina Cities and Counties, 1-3. 11 Intentional Torts An intentional tort is a wrongful act that is committed intentionally and results in injury or harm to the victim. The wrongdoer can be held liable even if he did not intend to cause injury or harm, and even if he honestly believed that his actions would not result in harm. All that is required for intentional tort liability is that the person intended to commit the act – lack of intent to do harm or ignorance of the law are not defenses. In addition, the legal doctrine of “transferred intent” may apply. Under this doctrine, the wrongdoer’s intent to commit an act against one person is transferred to any other person who is harmed by the wrongdoer’s action regardless of the wrongdoer’s intent. For example, if Bob intended to hit John but accidentally struck Doug instead, Bob could be liable to Doug for his injuries even though Bob never intended to hit Doug. There are three main kinds of intentional torts that may be particularly relevant to emergency managers and other government officials: battery, assault and false imprisonment. Battery Battery is intentionally inflicting harmful or offensive contact against another person. If a security guard, for example, intentionally slams an individual up against a wall without just cause, he may be held liable for battery. Whether the guard intended to cause harm to the individual is irrelevant. Battery clearly includes inflicting harm that actually results in some type of bodily pain or injury. Battery also includes contact that is merely “offensive,” even if it doesn’t result in physical injury. Contact may be offensive when it is damaging to a “reasonable sense of dignity.” In determining what constitutes offensive contact, the standard isn’t whether the person who was harmed was offended, but rather whether an “ordinary person not unduly sensitive as to his dignity” would have 12 been offended.11 If, for example, George gently pushes past Bob in a crowd, it is unlikely that George would be found to have committed battery. Even if Bob claimed to be offended by the contact, an ordinary person most likely would not have been offended, so George would not be liable for battery. Battery can also include contact made with an object that a person is holding (such as an umbrella or purse), the person’s clothing, or anything else that is so closely identified with the person’s body that contact with it would be as offensive as contact with the person’s actual body. Assault Assault is intentionally causing apprehension of harmful or offensive contact – in other wor
