Acknowledgement
Prepared by
John C. Pine, Ed.D
Associate Professor
Department of Agricultural Engineering
Louisiana State University Agricultural Center
Baton Rouge, LA 70803-4505
(504) 388-1075
Under Contract With
U.S. Environmental Protection Agency
October, 1988
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SUMMARY
The threat of liability for government service in the context of Title III has
been a subject about which there has been considerable interest. This report
represents a review of the available information about tort liability in the Title III
context and provides some guidance about how particular states fit within the
general tort liability area.
Governmental officials and employees, business representatives, and other
individuals who are members of a Local Emergency Planning Committee serve in an
environment where the threat of liability suits is ever-present; however, the threat
of liability judgments against the individuals involved is relatively remote.
Although the threat of personal and organizational liability exists, several
levels of legal determinations must be considered before liability is attached to a
particular situation. First, the question of whether negligence by or on behalf of the
state exists. If this question is answered in the affirmative, then there is the question
of whether state law provides qualified immunity to protect the interests of the state
and those who serve it. Often this discretionary, proprietary, private duty or
statutory immunity provides extensive protection for official agents of the state who
perform their duties within the prescribed limits of their role and responsibility. It
must be noted however, that the immunity is only qualified, and may be lost if the
member's actions are willful or wanton.
Additionally, the fear of suits and the exposure of the member's personal
resources is often addressed by statutory indemnification provisions. These statutes
provide for legal representation and the provision of payments for any judgements
that are rendered. Indemnification statutes are attempts to encourage public
servants, paid and non-paid, to carry out their official obligations without fear of
personal financial loss.
Because a particular state's law is generally the determining factor on many
questions of liability, members of Local Emergency Planning Committees should
consult legal counsel in their state to discuss their duties, authority, status as an
agent of the state, immunities, and indemnification. Legal counsel can clarify the
scope of individual and organizational liability so that local committees and their
members can focus their attention on planning for hazardous materials
emergencies.
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CONTENTS
I. Introduction \
II. Liability Under Federal Law 1
III. Liability Under State Law 2
Tort Liability 2
The Erosion of Governmental Immunity 3
IV. Governmental Liability and Immunity 3
Negligence 4
Statutory Immunity 6
Discretionary Immunity 7
Governmental/Proprietary Function Test 8
Private Liability Test 9
V. State Action 9
VI. Special Issues j i
VII. Conclusions 12
Bibliography
Appendix A ~ Guide for Determining Liability
Appendix B -- Tort Liability in Emergency Planning (Summary State Law)
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TORT LIABILITY IN EMERGENCY PLANNING
I. INTRODUCTION
As the result of several well-publicized and disastrous incidents affecting
individual health and the environment, accidents involving hazardous materials
became real to individuals in the United States and around the world beginning in
this decade.
Accidental spills or releases of hazardous materials have the potential for
inflicting health and -environmental damage and causing significant disruption in
communities of all sizes. In recognition of this fact, in 1986 Congress enacted
amendments to Superfund legislation (SARA Title III) which placed federal
emergency planning requirements and community right-to-know provisions on
state and local government.
Title III of SARA requires the Governor of each State to appoint a State
Emergency Response Commission. Each state commission then designates Local
Emergency Planning Committees, appoints committee members and supervises and
coordinates the activities of the committees. The local committees are required to
develop an emergency response plan for their community and to identify available
resburces which can be called on to respond to emergencies involving hazardous
materials. The local committees also create a means of maintaining information on
hazardous materials which are present in the community, and which Title III now
requires be reported to them.
Many members of Local Emergency Planning Committees are concerned about
the liability that may arise from their planning and administrative duties. The scope
of liability is determined by both federal and state law.
II LIABILITY UNDER FEDERAL LAW
Under the provisions of SARA Title III, Local Emergency Planning Committees
are required to prepare a plan for responding to chemical spills and other releases of
hazardous materials into the environment.
Once the plan is developed, it must be reviewed at least once a year -- or more
frequently, if circumstances warrant. Local committees must conduct exercises to
implement the plan. They are required also to make recommendations concerning
additional resources that may be necessary and the means for providing those
resources to make the plan effective.
The law also requires that local committees make certain information available
to the public. This would include, for example, the local emergency response plan, as
well as forms indicating which hazardous materials are present in the community.
Under the law, the federal courts may fine individuals or businesses which fail
to report toxic and hazardous chemicals. Fines can also be assessed for failure to
submit required reports such as materials safety data sheets or to provide required
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to report toxic and hazardous chemicals. Fines can also be assessed for failure to
submit required reports such as materials safety data sheets or to provide required
information to health professionals.
A person who has been denied access to information required by law, or who
feels that the committee is not meeting the requirements of the law, may file suit in a
federal district court against the governor or the State Emergency Response
Commission. The court may order the governor or the commission to meet the
requirements of the law, but the law does not provide for financial penalties against
cither entity (except in claims involving trade secrets).
SARA Title III does not provide authority for anyone to sue a local committee or
a local committee member. However, this federal law does not prevent a person from
filing suit under any other applicable federal, state or local law. Persons who feel
that they have been harmed by a local committee, or by an individual member of that
committee, may file suit in a state court under state law. Whether a Local Emergency
Planning Committee, or one of its members, can be held liable is a question of state
*
law.
III. LIABILITY UNDER STATE LAW
Major changes have occurred at the. state level during the last twenty years
with regard to * the immunity of governmental jurisdictions from tort liability suits
filed by individuals, businesses, or interest groups. Today, in many states, individuals
and businesses may file suit against a public organization as well as the officers and
employees of that organization.
Tort Liability
A tort is an action that harms another person, business, or group. It occurs
when a person acts or fails to act, without right, and thus harms another directly or
indirectly. A tort is an act for which a civil action for personal injuries or property
damage, rather than a criminal suit.
Each state, through its laws, regulations, and court decisions, recognizes
certain rights of individuals and businesses. A state's tort law protects these rights
by providing a means for a person or business to seek compensation for losses or
harm caused by another. Tort law suggests that, under the principle of fairness,
individuals harmed should be compensated to some degree for their loss. Tort law,
less and less makes differentiation between harm by public and harm by private
entities.
The guidelines for filing a tort liability claim against a state or local
governmental jurisdiction, or against individual employees or representatives of that
jurisdiction, are established by the tort law of each state. This law determines how
suits will be reviewed and defines the extent of the liability of governmental officers
and organizations.
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The Erosion of Governmental Immunity
For many years, most states and their political subdivisions enjoyed wide
protection or immunity from civil suits filed by individuals seeking relief because of
the wrongful conduct of public officials and employees.
This immunity was based on an English common law principle called
Sovereign Immunity. Under English law, the sovereign (king or queen)
traditionally could do no wrong. The sovereign and his or her representatives were
thus immune from civil claims. This doctrine was adopted into American law,
thereby extending immunity to the states and their political subdivisions.
Until 1960, only five states allowed suits against a state or its political
subdivisions. Beginning in the Sixties, however, state court decisions and legislative
actions began to erode the protections of sovereign immunity. By the mid-1980s,
every state in the Union had either laws or court decisions defining the extent of
liability of governmental units and their officers, employees, or official
representatives. These statutes and court decisions define:
The scope of liability
Areas of immunity
Procedural requirements for making claims
Damage limitations
Indemnification provisions
Means of providing insurance
In summary, then, the tort liability of state commissions, committees, or
individual members is affected and shaped by:
• Governmental Liability and Immunity. The law in each state defines the
extent of governmental liability and indicates whether immunity is
recognized in special circumstances. The immunity may involve
discretionary actions, governmental functions, or statutory provisions.
• State Action. Tort claims against a commission, committee, or its
individual members are filed in state court. The state is generally
named in the suit since commissions, committees, or individual members
while serving in their official capacity act on behalf of and represent
the state.
• Special Issues. If an action is filed against a member of a commission or
committee, some states provide legal counsel or pay a judgment
(indemnification). States may also be liable for the actions of the
commission or committees (vicarious liability). Immunity provisions
may apply, but could be lost for willful or intentional actions.
IV. GOVERNMENTAL LIABILITY AND IMMUNITY
The law of torts may allow suits against governmental jurisdictions with
few restrictions or limitations, as in the case of Washington or Louisiana. Other
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states place extensive restrictions on suits against public agencies of the state or its
political subdivisions, as is the case in Mississippi. The liability of governmental
jurisdictions and their employees may be shaped by:
1. Negligence
2. Statutory Immunity
3. Discretionary Immunity
4. Governmental/Proprietary Function Test
5. Private Liability Test
These elements of the law define the extent to which governmental units
and their employees or agents are immune from suit and indicate where they are
liable. At the state level, the extent of immunity or liability is determined by state
statutes and by decisions of the state courts. In order to understand the liability of
Local Emergency Planning Committees and their members, one must know the law of
the state and which principles of the law affect the scope of liability and immunity
within that state.
Negligence
State tort law generally provides a means for individuals harmed by the
actions of a governmental unit or its employees to claim compensation for their loss.
Such a suit could claim, for example, that the governmental unit or its employee(s)
failed to do what the reasonable and prudent person would have done under the
circumstances. This, of course, is negligence. Negligence is an unintentional action
which causes harm to another. It occurs when a person owes a duty to another and
fails to act with skill, diligence, or care, thus causing harm to that person. The
theory of negligence applies without regard to whether the cause of the harm is in
the public or private sector. There are four elements of negligence:
(1) The existence of a duty or standard of conduct created by judicial
decision (common law) or by a provision in state law;
(2) The failure to carry out the standard of conduct or duty;
(3) A connection between the act of the wrongdoers (the governmental
agency, employee, or agent) and the injury to another party
(individual, business, or corporation), which the law recognizes as the
legal cause of the harm; and
(4) Actual loss or harm to the injured party(ies).
All suits involving negligence must have these four elements. The
failure to satisfy each of these elements would result in dismissal of a claim of
liability.
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The first element of negligence is the existence of a duty which
establishes a standard of conduct for a public agency or a representative of
that agency. This duty may be imposed by common law, which requires that a
person or organization use reasonable judgment to determine whether
conduct causes a risk of harm to others. In other words, a person or
organization must use reasonable attention, perception, memory, knowledge,
intelligence, and judgment in everyday actions.
A school administration, for example, has a common law duty to repair
playground equipment that is unsafe. Public works departments have a duty
to repair known road hazards within a reasonable time. Liability for failure to
repair a hazard is determined by whether the department was informed that a
danger exists and that such a danger created a significant threat to others.
The common law duty to protect others is based on:
(1) A significant threat or known hazard which presents a danger to
others; and
(2) Control of the property (the playground or roadway) by a public
agency.
In addition to duties imposed by common law, duties may also be
imposed on public organizations by state law. A statutory duty would include,
for example, a requirement to inspect day care centers, repair traffic controls,
correct safety hazards in the work place, or inspect public buildings.
These statutory duties may or may not specifically mention liability.
They may simply establish a duty of care. Where liability is not specified, a
court is generally free to adopt or reject the statutory duty in a claim. Where a
statute provides for liability and penalties, the court will adopt the statute's
standard of care and penalties. Liability may in these circumstances simply be
determined by demonstrating that the statute was not carried out.
State law may require a State Emergency Response Commission or a
Local Emergency Planning Committee to develop a current emergency
preparedness or hazardous materials response plan. The failure to develop
this plan and keep it current could be the basis for a suit against the state
commission or local committee by individuals who believe that they were
harmed by the failure of the commission or committee to carry out the law, i.e.,
that the committee was negligent in fulfilling its responsibilities.
Public officials, commissions, and committees often have broad
discretion to make decisions involving public programs. Where such
discretion is limited by statute, agency rules, or regulations, liability may exist.
The limits of a committee's authority and discretion are thus a critical factor in
determining the extent of immunity.
A finding of negligence depends on several factors. These include: the
facts in the case, the circumstances surrounding the incident, the conduct of
the alleged wrongdoer, and whether the actions of the wrongdoer were, in
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fact, the cause of the injury or harm. Differences in facts among cases, even
though slight, may lead to different findings regarding liability, thus few
generalizations are easily made.
Public officials who act in a reasonable manner and carry out the
duties imposed by law are usually protected from liability. However, even
when public officials fail to act in a reasonable manner or fail to carry out the
requirements of a law, and that failure causes harm to others, they may still
have protection under the law. This protection is called immunity.
Statutory Immunity
State law may specifically provide immunity from liability for certain
actions. These may include emergency management activities, or actions
involved in helping respond to, prevent, or manage an incident involving
hazardous materials.
This immunity provision may be narrowly drawn to provide protection
only during a response, or it may be broadly defined to provide immunity in
any emergency management or disaster activity. A committee member may
have immunity under the law even if that person is negligent and has caused
harm to others.
Two elements affect immunity of hazardous materials programs and
activities under state law (including the activities of a state commission and a
local committee):
(1) The state disaster or emergency management statute may address
the effects of natural, man-made, or attack disasters and provide
immunity for emergency programs and activities. In this case, if a
suit is brought, the court would evaluate whether activities of the
local committee are a part of the state's emergency management
program. If the statute specifically includes man-made or
technological causes in the definition of a disaster, then the
activities of the state commission and local committee may be
immune from suit and protected by immunity provisions in the
state emergency management statute.
A provision in the state emergency management statute may
provide immunity to a person while engaged in any emergency
management activity, or may limit immunity during a response
to a declared emergency.
A state that has an immunity provision for any emergency
management activity may choose to define emergency
management. The term may be defined as any activity involved
in planning, preparing for, and carrying out functions to prevent,
minimize, or repair injury resulting from emergencies or
disasters.
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Such a broad definition includes activities involved in planning,
organizing, administering, and evaluating disaster programs and
activities.
In case of a suit, the courts could determine that the activities of a
local committee fall within the planning and administrative
provisions of the act and are thus immune from suit.
(2) A state may also provide specific statutory immunity for actions
involved in preventing, managing, or responding to emergencies
involving hazardous materials. Since state commissions, local
committees, employees, and authorized agents would be involved in
preventing or responding to such an emergency, a law of this kind
could provide immunity from suits.
Discretionary Immunity
In addition to immunity that may be provided under a state statute,
high level public officials enjoy protection for their discretionary judgments
and for decisions made within the scope of their position. This protection has
been provided by judicial decisions involving suits against public officials and
in legislative actions to protect public officials. It is available in almost all
states.
The intent of discretionary immunity is to free the public official
from the fear of tort liability if the decision results in harm to another.
Discretionary actions include policy-making decisions which chart the
direction and extent of policies, programs, and activities. They do not include
decisions concerning implementation of such policies, programs, or activities.
Discretionary immunity evolved from a concern on the part of courts
and legislatures not to interfere with the executive decision-making process.
This form of immunity is intended to address the claims of individuals harmed
by the actions of public officials and employees, and not discourage well-
qualified persons from serving in public positions.
The following questions clarify whether a decision is a discretionary
• Does the decision involve a basic governmental policy or program?
• Does the decision chart the course or direction of a program,
activity, policy, or objective (as opposed to a decision which
involves accomplishing the policy)?
• Does the decision require the exercise of basic policy judgment or
expertise on the part of the government employee?
• Does the governmental agency possess the proper authority to
make the challenged act or decision?
action:
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If the decision of the governmental agency or official involves these
elements, then the decision is discretionary and is protected by immunity. If
one or more of the questions are answered in the negative, further inquiry is
necessary and liability may result.
Discretionary immunity is not intended to exempt officers from
liability. It simply provides them some measure of protection while exercising
their judgment. It exists only when the agency or official has been delegated
responsibility or authority for certain decisions or judgments.
It is essential, therefore, that members of a committee understand the
scope of their duties and the limitations of their authority. Where members of
a local committee make decisions which are within their authority, they may
be exercising a discretionary action and may thus be immune from civil suit
in state court.
Governmental/Proprietary Function Test
The law in fifteen states makes a distinction between governmental
activities that are traditionally performed by public agencies and those
activities that are proprietary or conducted by the private sector. For those
states, a governmental or proprietary function test applies.
Activities such as licensing, permitting, inspections, and public safety
are performed by the public sector as an essential service for the public good.
Therefore, immunity is granted in these areas. The protection exists even
though the employee or agent may be negligent and cause harm to another.
Proprietary activities are performed by the public sector, but are
similar to business ventures in the private sector. They might include, for
example, services such as transit systems, parking garages, city hospitals,
recreation services, and garbage collection. If an injury results from these
services because of negligence, the courts could hold the public sector liable.
States that recognize the governmental proprietary function test
usually consider public safety, law enforcement or fire-fighting activities as
governmental functions. These agencies operate with immunity.
Disaster and emergency preparedness units are generally designated as
public safety operations, and therefore governmental functions which are
immune from suit.
Care should be taken to identify those activities in a state which qualify
as "governmental functions." Though variations occur, the law in each of the
fifteen states defines which activities are governmental functions, and thus
which activities have this immunity.
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Private Liability Test
In Florida, the State Supreme Court adapted the governmental
proprietary function test to create a form of immunity for public agencies in
Florida referred to as the Private Liability Test. State law in Florida provides
that public agencies are liable "to the same extent as a private person under
like circumstances." In other words, if a duty does not exist for a private
person under the same circumstances, then there would be no duty for the
public employee or agent, and thus no liability. In order to clarify this private
liability test, the court established four types of activities:
(1) Legislative, permitting, licensing, and executive officer activities
(2) Enforcement of the laws and protection of public safety
(3) Capital improvements and property control operations
(4) Provision of professional, educational, and health care services
The Florida Supreme Court held that there would be no liability for the
action or inaction of governmental officials or employees in carrying out the
activities of categories 1 and 2. Private individuals and businesses do not have
a duty in licensing or permitting or with regard to protecting the health and
safety of the community. Since private individuals or businesses do not have
any legal duty in these areas, there is no legal duty placed upon public entities
or individuals.
Professional, educational, and general services and activities such as
the provision of medical care and educational services are performed by
private persons as well as governmental entities. A standard of care
governing actions in these areas is recognized in the private sector. Since a
common law duty of care exists in the private sector, a public agency could be
held to the same standard. There could be liability for activities which fit in
categories 3 an 4.
V. STATE ACTION
In their laws or comprehensive tort liability statutes, many states
include provisions that a governmental jurisdiction is responsible for the
actions of its officers, employees, and agents. The official actions of the
officials, employees, or agents performed within the scope of their duties and
responsibilities are thus done on behalf of the agency of the state (state
action). Where this principle of state action applies, individuals are generally
protected from liability.
A suit filed against an individual member of a State Emergency
Response Commission or a Local Emergency Planning Committee for actions
while serving the public agency would be a claim in the person's "official
capacity" rather than individual or personal capacity. As long as the claim
involves actions relating to the member's official duties, the suit will be filed
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against him in his official capacity as a representative of the agency (the
state).
However, if the alleged violation evolves from actions outside the duties
of commission or committee members, the court may consider the claim
against the member to be in his individual capacity and therefore the
individual may be subject to liability.
A "state agency" may include all executive departments, agencies,
boards, bureaus, and commissions of the state, the primary function of which
is to act as instrumentalities or agencies of the state.
The term "employee" may be defined to include full- and part- time paid
staff, volunteers, official agents, and appointed members of boards and
commissions.
For example, in Alabama, an "employee" is an officer, official,
employee, or servant of a governmental entity, including elected or appointed
officials, and persons acting on behalf of any governmental entity in any
official capacity in the service of the governmental entity.
In Arizona, an "employee" includes an officer, employee, or servant,
whether or not compensated or part-time, who is authorized to perform any
act of service (except independent contractors). "Employee" also includes
uncompensated members of advisory boards appointed as provided by law.
A state commission, district, or committee formally created by the
executive order of the governor or by state legislative action is thus an official
agency of the state. A Local Emergency Planning Committee that is created by
a State Emergency Response Commission and whose members are
appointed by the state commission is also an agency of the state. If the
members of the local committee are appointed by the state commission, then
they represent the state rather than a city, county, or other political
subdivision.
If the state commission authorizes or requires political subdivisions to
appoint members of the local committee, the court could conclude that the
local committee represents the political subdivision rather than the state. In
this case, the law which would apply would be the law which applied to the
political subdivision which made the appointment. Commission and committee
members may qualify as "employees" as long as they are formally appointed
under the laws of the state by a proper authority. The term "employee" may
even apply to special advisors of the commissions and committees who work
with or without compensation as long as they are formally authorized by the
commission and do not serve as a private contractor.
Commission and committee members should review the meaning of the
"state" and "employee" in their state to determine whether they are considered
official agents of the state.
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Many Local Emergency Planning Committee members serve in a dual
capacity as a member of the committee and as an employee of the political
subdivision (city fire service, police department, or emergency management
agency). As long as state law defines "employee" to include members of
commissions, boards, or committees, the member's actions would be as an
official agent of the state.
Depending upon the circumstances, however, the court could conclude
that the actions of the committee member were outside his role and authority
as a committee member, but were within his capacity as a local governmental
employee. Actions outside their committee role could be viewed by the courts
as acts of the local governmental employer. This distinction could result in a
determination that the local government, for example, was liable for the act of
the employee rather than the state which appointed the individual to the
committee. Committee members should therefore understand their authorized
role and responsibilities.
Many local committee members are self-employed, employed by or
represent a private business or non-profit corporation, or are a private citizen
who is not employed. The actions of these local committee members would be
considered state actions on behalf of the state as long as:
(1) the local committee members are appointed by the state
commission;
(2) the state commission has the necessary state authority to appoint
local committee members;
(3) both the state commission and the local committee are agencies of
the state;
(4) state law recognizes the local committee members as agents of the
state; and
(5) the committee member is acting within the scope of his authority.
Under these circumstances, the state courts would ordinarily perceive
suits against local committee members as suits in their official capacity or suits
against the state and such suits would not subject the individual to personal
liability.
VI. SPECIAL ISSUES
Although state, agencies, and their official agents may enjoy broad
immunity under state law, the threat of liability suits against a state
commission, committee, or individual members does exist. State law may allow
civil suits in state court against a public agency or its representative. As a
protection for employees and official agents who are sued, the state may
provide legal counsel and also pay damages.
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In many states, the employer or agency is, by law, vicariously liable
for actions of its employees or agents. Under these circumstances, the agency
provides legal counsel for the public official or agent and pays any judgment
assessed by the court. The law usually specifies that the employee or agent
must have been acting within his or her authorized role and did not
intentionally cause harm to others.
Statutes granting indemnification or immunity from liability are
intended to insulate officers and employees from civil claims arising out of
their official duties. The agency is obligated to represent and pay damages for
legitimate activities performed within the member's position. It is intended to
extend protection for negligent acts, but not from gross negligence or
intentional actions.
Despite the availability of statutory or judicial immunities, employees
or official representatives of public jurisdictions may be held liable for
conduct that is reckless, unjustifiable, or intentional, and that goes well
beyond what the reasonable and prudent person would have done under the
circumstances. Clearly, public employees and volunteers must understand that
there are limits to immunity and indemnification.
Indemnification also means that the agency will not seek restitution
from the official or agent for the cost of the suit. Indemnification allows an
agency to represent employees and officials, pay judgments, and be prohibited
from seeking restitution from the individual. The agency is not, however,
prohibited from taking disciplinary action against an employee whose actions
justify punishment.
VII. CONCLUSIONS
While governmental officials and employees, business representatives,
and individuals who are members of a local planning committee may serve in
an environment where the threat of liability suits is ever- present, it should
be remembered that the threat of liability judgments against the individuals
involved is relatively remote.
Although the threat of personal and organizational liability exists, state
law provides qualified immunity to protect the interests of the state.
Discretionary, proprietary, private duty or statutory immunity provides
extensive protection for official agents of the state who perform their duties
within the prescribed limits of their role and responsibility. The immunity,
however is only qualified, and could be lost if the member's actions are willful
or wanton.
Finally, the fear of suits and the exposure of the member's personal
resources is often addressed by statutory indemnification provisions. These
provisions attempt to encourage public servants, paid and non-paid, to carry
out their official obligations without fear of personal financial loss.
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Members of Local Emergency Planning Committees should consult legal
counsel in their state to discuss their duties, authority, status as an agent of the
state, immunities, and indemnification. Legal counsel can clarify the scope of
individual and organizational liability so that local committees and their
members can focus their attention on planning for hazardous materials
emergencies.
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BIBLIOGRAPHY
"Emergency Planning and Community Right-to-Know Programs,"
Federal Register. Vol. 52, No. 77, pp. 13378-13410, April 22, 1987.
Hazardous Materials Emergency Planning Guide. (NRT-1), National Response
Team, Washington, D.C., 1987.
Pine, John C. and Robert D. Bickel, Tort Liability Today: A Guide for State and
Local Governments. Public Risk Management Association and the National
League of Cities, Washington, D.C., 1986.
Pine, John C., Tort Liability of Governmental Units In Emergency. Actions and
Activities. Federal Emergency Management Agency,
Washington, D.C., 1988.
"Superfund: Looking Back, Looking Ahead," Environmental Protection Agency
Journal, pp. 28-30, January-February 1987.
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APPENDIX A
GUIDE FOR DETERMINING LIABILITY
To clarify the scope of liability under state law, members of local emergency
planning committees should focus on the following points:
A. IS SOVEREIGN IMMUNITY ABOLISHED, RETAINED OR PARTIALLY WAIVED UNDER
STATE LAW?
If sovereign immunity is retained, abolished or partially waived, state statutes and
court decisions will clarify what immunity exists in specific programs or actions.
Appendix "B" provides an initial guide in determining the status of sovereign
immunity in each state.
Does the state have a comprehensive tort liability statute or a few
provisions of the state code that describe the liability of governmental
units?
Appendix "B" identifies those states that have a comprehensive tort
liability statute and those that have selected statutes addressing liability.
Since in most cases, the State Emergency Response Commission and
through them, the Local Emergency Planning Committees are appointed
by the state (Governor), state tort law will determine the extent of
liability for the Local Emergency Planning Committee and its members.
B.
DOES STATE LAW RECOGNIZE DISCRETIONARY IMMUNITY?
Almost all states recognize immunity for public officials exercising discretionary
judgments. New Mexico is the only state that does not recognize discretionary
immunity by law.
C DOES THE STATE RECOGNIZE THE DISTINCTION BETWEEN GOVERNMENTAL
AND PROPRIETARY ACTIVITIES, AND OFFER IMMUNITY FOR
GOVERNMENTAL FUNCTIONS?
States that recognize immunity for governmental functions may specifically include
state emergency management programs and activities as governmental functions.
Appendix "B" identifies those states that recognize this form of immunity. Review
the introduction to the emergency management statute in your state to see if
emergency management is designated as a governmental function.
D. IMMUNITY IN EMERGENCY MANAGEMENT ACTIVITIES
1. What is a disaster?
Many state emergency management acts provide immunity for state and local
jurisdictions involved in emergency management activities. The immunity
provisions apply to hazardous materials emergencies if the term "disaster" is
defined in the statute to include technological, man-made or human-caused
events.
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Most state emergency management statutes define the term "disaster" in the
introduction to the statute. Review the introductory section of your state
emergency management act to see if disaster includes technological or
man-made incidents. Appendix "B" notes those states that define "disaster" to
include technological, man-made or human-caused events.
2. Immunity Provision
Does the state emergency management act have an immunity provision? If
so, is immunity limited to designated disasters or does it apply in any
emergency management activity? If your state provides for immunity in any
emergency activity, you may be protected in planning or administrative
activities, practice exercises, drills or training activities. Appendix "B" notes
those states that have an immunity provision for any emergency management
activity. To clarify what activities are included in emergency management,
refer to the definitions section of the state emergency management statute for
a complete statement of what is meant by "emergency management."
3. Local Planning Requirements
Twenty-five state emergency management acts include provisions
requiring local governments to develop and maintain local emergency
management plans. A jurisdiction may lose immunity provided in
emergencies if they cause harm because a local plan was not developed or
maintained. A citizen harmed as a result of a failure to meet a statutory duty to
develop and keep current a local emergency management plan, could be the
basis of a liability suit. Appendix "B" notes those states that require a local
disaster plan.
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Appendix B
TORT LIABILITY IN EMERGENCY PLANNING
Summary of State Law
STATE EMERGENCY MANAGEMENT ACT
STATE
Alabama
Alaska
Arizona
Arkansas
California
Colorado
Connecticut
Delaware
Florida
Georgia
Hawaii
Idaho
Illinois
Indiana
Iowa
Kansas
Kentucky
Louisiana
Maine
Maryland
Massachusetts
SOVEREIGN
IMMUNITY
PW (1)
[state r]
A (2)
A (2)
R
PW (2)
PH (2)
PW (1)
PW (2)
PW (2)
PW (1)
PW
PW (2)
PW (2)
PW (2)
PW (2)
PW (2)
PW (1)
A
PW (2)
PW (1)
PW (2)
GOVERNMENTAL "DISASTER" IMMUNITY
IMMUNITY (includes IN
man-made EMERGENCY
events)
x 31-9-16
26.20.140
x 26-314
x 1 2-75-1 28
x 8657
x x 24-33.5-903
x Sect. 28-13
x Sect. 3116
(Broad
immunity
x recognized
in case law)
x x 38-3-35
x 128-18
x 46-1 01 7
x 1117
x 10-4-1-8
x
x 48-915
x x 39.433
x 29.613
x 37-B 822
x x 12-105
31 Sect. 12A
BROAD LOCAL
DEFINITION PLAN OTHER
OF EMERGENCY REQUIRED
MANAGEMENT
x x 4
x x
x
x x 4
x x
x x 5
x 4
x 3
x 3
x x 4
x 4
x
x x 3,4
x x
x 3,4
x x
x x 4
x x
x x 3
Limited
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STATE
Michigan
Minnesota
Mississippi
Missouri
Montana
Nebraska
Nevada
New Hampshire
New Jersey
New Mexico
New York
North Carolina
North Dakota
Ohio
Oklahoma
Oregon
Pennsylvania
Rhode Island
South Carolina
South Dakota
Tennessee
Texas
SOVEREIGN
IMMUNITY
PW (2)
PW (2)
PW (2)
PW (1)
PW (2)
PW (2)
A (2)
PW (1)
PW (2)
PW (2)
PW (2)
PW (1)
PW (1)
PW (1)
PW (2)
PW (2)
PW (2)
A (2)
PW (2)
PW (1)
PW (2)
PW (2)
GOVERNMENTAL "DISASTER"
IMMUNITY (includes
man-made
events)
X X
X
X
X X
X
X
X
X
X
x [local] x
X
x x
x
x
x
X X
X
X X
X
X X
STATE EMERGENCY MANAGEMENT AC
IMMUNITY BROAD
IN DEFINITION
EMERGENCY OP EMERGENCY
MANAGEMENT
30.411 x
466.07 [local]
3.736 [state]
33-15-21 x
1 0-3-1 1 1 x
81-829.55 x
414.110 x
107:12 x
55:13A-6
Hazardous
Mat. Response
41 -4-4
9193 x
166 A-14 x
37-17.1-16 x
5915.10 x
63 S. 683.14 x
401.170 x
7303(c) x
30-15-15 x
15-78-60 (19) x
33-15-38 x
58-2-129 x
418.022 x
T
LOCAL
PLAN OTHER
REQUIRED
3
3
3
x 3
x 3,4
3
3
3
3,4
x 3
4
x
x 3
x
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STATE EMERGENCY MANAGEMENT ACT
STATE
Utah
Vermont
Virginia
Washington
West Virgina
Wisconsin
Wyoming
SOVEREIGN GOVERNMENTAL "DISASTER"
IMMUNITY IMMUNITY (includes
man-made
events )
PW (2) x x
PW (1) x
PW (1) x x
A (2) x
A (2) x
A (1) [local] x
R [state]
A (2)
IMMUNITY
IN
EMERGENCY
63-30-1 6
20 Sect. 7
44-146.23
38.52.180
15-5-11 (a)
166.08(e)
895.48(e)
19-5-113
BROAD
DEFINITION
OF EMERGENCY
MANAGEMENT
x
x
X
X
X
X
LOCAL
PLAN OTHER
REQUIRED
3
x
x 5
4
x
x 3
KEY
A Abolished Sovereign Immunity
PW Partial Waiver of Immunity
R Retained Immunity
1 Selected Statutes: State statutes permit suits in specific areas.
2 Comprehensive Tort Liability Statute: These statutes define the scope of the liability
of public agencies; establishes what forms of immunity exist; discusses procedures
for bringing suit; and sets limits for damages, if any.
3 Purchase of insurance constitutes waiver of immunity.
4 State Claims Board, Commission or Appeals Court reviews liability claims rather than a
state court.
5 State assumes financial liability for claims in an emergency situation.
Broad Definition of Emergency Management: The State Emergency Management Act may provide
immunity in any emergency management activity (planning, organizing, administering,
responding and cleanup activities).
•6 U.S.G.P.O.: 1989- 617-003/84360
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