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Types of Liability

Information in this section is derived from
FEMA: CERT Liability Guide (PDF 98p)
FEMA/Citizen Corps: Volunteer Liability Guide (PDF 100p)

Civil law governs the rights and responsibilities of individuals and entities to one another. Civil liability is legal responsibility for the consequences of failing to satisfy obligations to another. Civil liability is not enforced by government prosecution, but rather by an individual or entity (the plaintiff), filing a lawsuit against someone else (the defendant), seeking compensation for a perceived wrong, often an injury or breach of contract. Although serious and potentially very costly, civil lawsuits are private disputes that do not result in criminal penalties. If the plaintiff wins, the court orders the defendant to pay damages to the plaintiff. The plaintiff and the defendant may also reach a compromise, called a settlement. Most civil lawsuits do not involve criminal acts, but victims can sue criminal offenders to recover the damages caused by a criminal act.

All of these components of the law affect one another, and they all affect emergency volunteers. Courts interpret constitutions, statutes, and regulations when deciding cases before them. Legislatures that do not like a court decision may pass a statute that could produce different results in future cases. Agencies revise regulations to conform to new statutes or to comply with court decisions. Complete research of a legal issue looks at all these components of the law and how they interact.

Types of liability
1. Civil liability
2. Injury benefits for emergercy volunteers
3. Penalties for breach of licensing and certification requirements

1. Civil liability
Any type of activity in which carelessness can cause injury or property damage is a potential source of liability for negligence. Motor vehicle operation, care of injured victims at the scene of an emergency, volunteer training and exercises, and volunteer screening and credentialing are activities that can cause liability concerns. An injury or damage does not result in civil liability unless there is a legal basis for holding someone responsible for that loss.

There are four major types of civil liability:
a) Negligent acts or omissions
b) Intentional acts
c) Liability for the acts of others
d) Strict liability

These four types of civil liability are also referred to as tort liability. Civil liability law is largely based (although not entirely) on case law. Due to the unpredictable results of civil liability lawsuits, they are a major concern for emergency volunteers and their organizations.

a) Negligent acts or omissions
Negligence is the failure to fulfill a duty to use ordinary care, which is the care that a reasonable person would use under similar circumstances. To prevail in a negligence lawsuit, a plaintiff must prove that:
  • The defendant had a duty to the plaintiff to use ordinary care.
  • The defendant breached (failed to fulfill) that duty to use ordinary care.
  • The defendant's failure to use ordinary care directly caused legally recoverable damages to the plaintiff.

  • A plaintiff who proves in court facts that support all of these elements of negligence can be awarded a judgment that requires the defendant to pay financial compensation to the plaintiff for the resulting damages. Damages can include compensation for property damage, lost income, medical expenses, and pain and suffering.

    More severe forms of negligence include gross negligence, willful and wanton misconduct, and reckless disregard for others, which amount to failure to use any care at all. A lawsuit based on these more extreme behaviors can result in an award of additional damages (punitive damages) intended to punish the defendant, not just compensate the plaintiff.

    The outcome of negligence lawsuits that go to trial-especially with a jury-can be unpredictable. A jury often has the authority-within broad limits-to decide what ordinary care was required of the defendant, based on the circumstances at the time of the incident. In theory, ordinary care at an active disaster site with many casualties should differ from ordinary care during a routine visit to a hospital emergency room, because the circumstances are not similar. Juries' awards of damages can also be unpredictable. The difficulty of predicting the outcome leads to the settlement of many negligence claims before they reach trial.

    b) Intentional acts
    Civil liability claims can also arise from intentional acts. These include trespass, emotional distress, defamation, false imprisonment/unlawful restraint, assault, and battery. Claims based on intentionalacts require the plaintiff to prove that the defendant intentionally committed a wrongful act, and may also require proof that the defendant intended to cause harm. Some intentional acts, such as assault and battery, can also be prosecuted as crimes.

    c) Liability for the acts of others
    Individuals and organizations can also be legally responsible for the actions of someone they have the right to control; for example, an employer is usually liable for the job-related actions of its employee. Those who could be liable for the actions of an emergency volunteer include:
  • An employer who loans its employee to an emergency preparedness or response effort, especially if that employer pays and retains control over the employee during deployment.
  • An organization that has the right to control the actions of an emergency volunteer in the field.
  • A facility that allows an emergency volunteer to provide emergency services on its premises (a common concern of healthcare facilities that provide a base of operation for volunteer healthcare providers after a disaster).

  • An organization may also be liable if it puts a volunteer in a position to harm someone; for example, failing to properly screen or train the volunteer or failing to terminate a volunteer who is incompetent could make an organization liable for the acts of that person.

    d) Strict liability
    Strict liability is a legal responsibility for damages based on the nature of an activity, rather than on a negligent or intentional act. Strict liability has limited application to most emergency volunteers because it applies to injuries or damages arising from ultra-hazardous activities, such as using explosive materials. It is also the basis for many product liability laws, which impose liability for injuries caused by defective products. Workers' compensation, discussed in the next section, is another type of strict liability, because it does not require proof that a negligent act by the employer caused the employee's injury. To prove a strict liability claim, the plaintiff must prove that the defendant was engaged in an activity that is subject to strict liability, and that the plaintiff suffered harm as a result.

    2. Injury benefits for emergercy volunteers
    Most states require employers to provide workers' compensation benefits for their paid employees who are injured, contract a work-related illness, or are killed while on the job. The type and amount of benefits are established by law and are provided on a no fault basis: the employee does not have to prove that the employer was at fault to receive benefits, and the employee can usually receive benefits even if his or her carelessness caused or contributed to the injury. The goal of the workers' compensation system is to ensure that injured employees receive help without lengthy and costly litigation. In exchange for providing these benefits, the workers' compensation law normally protects the employer from civil liability for the injury.

    Emergency volunteers often have no similar protection. Some states provide benefits for registered emergency volunteers, but those benefits are often limited. The lack of reliable benefits may be a barrier for potential emergency volunteers. It may also discourage employers from assigning their employees to work as emergency volunteers, because the employer's workers' compensation insurance could be responsible if the employee is injured. Injured emergency volunteers who do not receive workers' compensation benefits can file a civil liability lawsuit against the organization for which they were working, with a more unpredictable and potentially more costly outcome.

    3. Penalties for breach of licensing and certification requirements
    States control the quality of services rendered within their borders by requiring that professionals and trades people have a license or equivalent certification. These requirements affect a wide variety of professions, but of particular relevance in the emergency management context are healthcare professionals, architects, and engineers. Contractors are also important to emergency response and recovery efforts and their licensing/certification requirements are more variable, issued at the state or local level and sometimes both.

    The government enforces licensing and certification requirements. The penalties for violation can be substantial, including criminal misdemeanor and felony charges. Consequently, these requirements are a potentially significant barrier to volunteerism, especially interstate mutual aid.

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