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1ESLEGAL.PPT
LAST REVISED: 9 JULY 2008 Citizens Serving Communities
Legal Issues in
Emergency Services
Developed as part of the National Emergency Services Curriculum Project
2ESLEGAL.PPT
LAST REVISED: 9 JULY 2008 Citizens Serving Communities
COMMUNICATION IS THE KEY
This presentation will not answer all of your questions about liability,
BUT your local legal counsel CAN
3ESLEGAL.PPT
LAST REVISED: 9 JULY 2008 Citizens Serving Communities
The Threat
• Case Filings are generally increasing
• Claims against the government are dramatically increasing
• Plaintiff chances of winning are increasing
• Award sizes have increased
4ESLEGAL.PPT
LAST REVISED: 9 JULY 2008 Citizens Serving Communities
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
5ESLEGAL.PPT
LAST REVISED: 9 JULY 2008 Citizens Serving Communities
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
6ESLEGAL.PPT
LAST REVISED: 9 JULY 2008 Citizens Serving Communities
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
7ESLEGAL.PPT
LAST REVISED: 9 JULY 2008 Citizens Serving Communities
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
8ESLEGAL.PPT
LAST REVISED: 9 JULY 2008 Citizens Serving Communities
Tort Liability Continued
• Civil Rights Liability– Constitutional rights are violated
• Physically restraining public from entering accident site
9ESLEGAL.PPT
LAST REVISED: 9 JULY 2008 Citizens Serving Communities
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
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LAST REVISED: 9 JULY 2008 Citizens Serving Communities
DUTY TO PERFORM
Existence of duty establishes standard of conduct
11ESLEGAL.PPT
LAST REVISED: 9 JULY 2008 Citizens Serving Communities
FAILURE TO PERFORM
Breach of the duty required to prove negligence
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LAST REVISED: 9 JULY 2008 Citizens Serving Communities
FORESEEABLE CAUSE
Failure to perform duty results in direct or indirect harm
13ESLEGAL.PPT
LAST REVISED: 9 JULY 2008 Citizens Serving Communities
Harm
• There must be a measurable harm caused through:– Damage to property– Physical injury– Mental anguish
14ESLEGAL.PPT
LAST REVISED: 9 JULY 2008 Citizens Serving Communities
ELEMENTS OF LIABILITY
All four elements MUST be present to prove that liability exists
15ESLEGAL.PPT
LAST REVISED: 9 JULY 2008 Citizens Serving Communities
GOVERNMENT IMMUNITY
Sovereign Immunity has been steadily eroding since the 1960s
16ESLEGAL.PPT
LAST REVISED: 9 JULY 2008 Citizens Serving Communities
Types of Immunity
• Absolute
• Discretionary
• Qualified
• Statutory
17ESLEGAL.PPT
LAST REVISED: 9 JULY 2008 Citizens Serving Communities
Absolute Immunity
• Absolute immunity is enjoyed by very few officials:– United States President– Judges
18ESLEGAL.PPT
LAST REVISED: 9 JULY 2008 Citizens Serving Communities
DISCRETIONARY IMMUNITY
Covers the formation of policy, not its implementation
19ESLEGAL.PPT
LAST REVISED: 9 JULY 2008 Citizens Serving Communities
STATUTORY IMMUNITY
Created by legislation -
“Good Samaritan” provisions
20ESLEGAL.PPT
LAST REVISED: 9 JULY 2008 Citizens Serving Communities
Qualified Immunity
• Sometimes known as “Limited Immunity”
• Often Statutory in nature
• Requires certain actions to be taken prior to filing a suit
21ESLEGAL.PPT
LAST REVISED: 9 JULY 2008 Citizens Serving Communities
IMMUNITY
You may be required to prove,
in court,
that your actions are immune
22ESLEGAL.PPT
LAST REVISED: 9 JULY 2008 Citizens Serving Communities
How Liability May Arise
• Problems with PLANNING– Poor Plans– Out-of-date plans– Unrealistic plans
• Problems with TRAINING– No training– Undocumented training– Unsafe training
23ESLEGAL.PPT
LAST REVISED: 9 JULY 2008 Citizens Serving Communities
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
24ESLEGAL.PPT
LAST REVISED: 9 JULY 2008 Citizens Serving Communities
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
25ESLEGAL.PPT
LAST REVISED: 9 JULY 2008 Citizens Serving Communities
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
26ESLEGAL.PPT
LAST REVISED: 9 JULY 2008 Citizens Serving Communities
Standard of Care
• Always changing for any community
• Standard of Care five years ago, may not apply today
27ESLEGAL.PPT
LAST REVISED: 9 JULY 2008 Citizens Serving Communities
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?
28ESLEGAL.PPT
LAST REVISED: 9 JULY 2008 Citizens Serving Communities
STANDARD OF CARE Continued
You must work to keep current in your field to meet changing
requirements
29ESLEGAL.PPT
LAST REVISED: 9 JULY 2008 Citizens Serving Communities
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
30ESLEGAL.PPT
LAST REVISED: 9 JULY 2008 Citizens Serving Communities
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
31ESLEGAL.PPT
LAST REVISED: 9 JULY 2008 Citizens Serving Communities
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
32ESLEGAL.PPT
LAST REVISED: 9 JULY 2008 Citizens Serving Communities
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
33ESLEGAL.PPT
LAST REVISED: 9 JULY 2008 Citizens Serving Communities
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
34ESLEGAL.PPT
LAST REVISED: 9 JULY 2008 Citizens Serving Communities
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