What Is Government Liability For Disaster Response?

Robert J. Mandell discusses government liability for disaster response.

The recent destruction wrought by hurricane Florence in the Carolinas and Virginia have focused us, once again, on how well and how quickly our government agencies respond to the public’s needs during and after a natural disaster. Last year, it was hurricane Maria in Puerto Rico and along the Gulf coast of the U.S. In the event of a natural disaster or accident, do citizens have a right to expect a reasonable level of government liability for disaster response management. Should they be sued for negligence if they do not meet that expectation?

People look to government for guidance and assistance in times of widespread destruction and injury. It is the responsibility of local authorities to train, exercise, and plan for emergency management procedures. The safety and protection of its citizens should be, both legally and morally, government’s highest priority. Emergency management law in the U.S. stretches across all levels of government — federal, state, and local.

Where Does Responsibility Lie?

All three levels of legal responsibility may result in liability but the most likely recourse, in the case of negligence, is state law. Negligence is considered to be the mandate that every person has a general obligation to act in a reasonable manner at all times. When one acts unreasonably or fails to act and it results in the injury of another person or property, legal liability occurs. Government liability for disaster response is included under this mandate.

Washington State Pays Out Millions After Highway Tree Crash

Case in point: in a recent decision, two years after the original tragedy, Washington State has agreed to pay $10 million in damages to the three adult children and son-in-law of a couple who were killed when a tree crashed onto their SUV. While Tim and Cheryl Owen were killed instantly, their three adult children and son-in-law survived, albeit with severe injuries, including a back injury that has left one of the victims a quadriplegic.

The incident occurred in December of 2012 — the Owen family was driving along Highway 2 which weaves through a canyon towards Leavenworth, a city in central Washington, when an ice-laden, 125-foot-tall tree struck the vehicle.

What Constitutes Government Negligence?

The tree which fell on the Owen’s car was not the first of that day, nor even that week. In the days leading up to the accident, more than 100 trees had snapped because of the wintery weather conditions. Despite other roads being closed because of the dangers, Highway 2 was not closed after the Owen family accident. In fact, it took a second accident, a tree falling on a car carrying a pregnant woman, to make the state close down the road. The reasonable expectation of government liability for disaster response would not seem to have been met in this case.

The Owen family’s claims alleged that the state was responsible for failure to close down a dangerous roadway. The area had been experiencing severe weather for a while before the incident, and Chelan County had declared emergency status, asking residents to restrict driving. Washington State’s Department of Transportation, however, failed to “echo any of these warnings.” Moreover, the Washington State Department of Transportation (WSDOT) failed to heed requests by State Patrol to close major roads and highways.

Rules On Negligent Disaster Response

For most of our history, humans have been governed by various forms of sovereign ruler. The historic phrase “Rex non potest peccare,” meaning “the King can do no wrong,” protected the nobility and other sovereigns, making them immune from any tort liability. No matter what the wrongdoing, the King or sovereign could not be held responsible. The United States itself effectively upheld this principle until about half century ago. In 1946, the Federal Torts Claims Act was passed, finally granting citizens the right to pursue claims against the government.

While the FTCA has helped thousands of citizens find justice, there are still quite a few loopholes that state and other levels of government can use to duck responsibility on damages payment. In the law of torts, a so-called “act of God,” for example, may be used as a write-away for liability. A natural disaster can be deemed an act of God, the lack of which would have avoided the cause or lessened the result of liability.

However, there is a counter to this. Foreseeable results of unforeseeable events may still be subject to liability. This falls under the principle of “duty of care,” that authorities are responsible for anticipating natural disasters and other events insofar as they can prepare for it. Potentially, failure to communicate hazard warnings to the community can fall under this clause and this would seem to support a logical assumption of government liability for disaster response.

The Principle of ‘Failure To Warn’

In the wake of Hurricane Katrina and other natural disasters, such as the avoidable, hazardous weather tragedy that befell the Owen family, the issue of ‘failure to warn’ has been popping up with more frequency.

As a society, we believe it is reasonable to expect local and state governments to adequately prepare for and respond to such events. Thankfully, Washington State took full responsibility for the incident in the case of the Owen family. Still, the damage is irreversible and unpayable. No amount of money can make up for the loss of one’s mobility and no amount of money can replace the value of a human life. The Owen family cannot be made whole. But they will not be made to pay an even higher price for the remainder of their lives.

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Robert Mandell is a personal injury and wrongful death attorney, and lead litigator at The Mandell Law Firm. He is experienced and knowledgeable in all areas of personal injury law, including accidents and third-party negligence. Call him for a free assessment of your claim. It’s important to work with a personal injury attorney who has demonstrated a determination to fight for his clients. Robert Mandell and the team at Mandell Law will fight to protect your rights. To arrange a free consultation, contact Robert Mandell at The Mandell Law Firm in Northridge. 818.886.6600.

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