# Session No. 38

### Course Title: Disaster Response Operations and Management

### 

### Session Title: Record Keeping, Transportation and Legal Issues

## Time: 50 minutes

**Objectives:**

38.1 Understand the importance and difficulties associated with record
keeping in time of disaster, and identify ways to overcome such
challenges.

38.2 Comprehend transportation issues in disasters, including the need
for this function, possible problems, and recommended solutions.

38.3 Identify potential legal concerns facing emergency managers and
first responders, and mention ways to minimize negative impacts.

**Scope:**

**In this session, the professor covers three important considerations
for those involved in disaster response operations. First, the session
includes a lecture about the importance and difficulties associated with
record keeping, and identifies ways to overcome those challenges in time
of disaster. Second, information about traffic related issues are
identified along with solutions for disrupted transportation systems.
Finally, the session identifies potential legal concerns and mentions
ways to limit liability for emergency managers and first responders.**

**Session Requirements:**

1.  Instructor Reading:

> Hafter, Jacob L. and Victoria L. Fedor. 2004. *EMS and the Law*. Jones
> and Bartlett Publishers: Boston.
>
> Lawyers Club of San Francisco. 1988. *When Disaster Strikes: How to
> Handle Law Office Emergencies.* American Bar Association: Chicago.
>
> Killian, Lewis M. 1956. *An Introduction to Methodological Problems of
> Field Studies in Disasters*. National Academy of Sciences, National
> Research Council: Washington, D.C.
>
> Mancini, Marguerite R. and Alice T. Gale. 1981. *Emergency Care and
> the Law*. Aspen: Rockville, MD.
>
> McEntire, David A. 2006. "Overcoming Typical Challenges." *Disaster
> Response and Recovery: Strategies and Tactics for Resilience*. New
> York: Wiley.
>
> Nicholson, William C. 2005a. "Immunity Law: Protection for Emergency
> Responders." *Journal of Emergency Management* 3 (1): 12-13.
>
> Nicholson, William C. 2005b. "NFPA 1600: The New Standard for
> Emergency Management." *Journal of Emergency Management* 3 (2): 44-46.
>
> Nicholson, William C. 2003a. "Litigation Mitigation: Proactive Risk
> Management in the Wake of the West Warwick Club Fire." *Journal of
> Emergency Management* 1 (2): 14-18.
>
> Nicholson, William C. 2003b. *Emergency Response and Emergency
> Management Law: Cases and Materials*. Charles C. Thomas Publishers,
> Ltd.: Springfield, Il.
>
> Pine, John. 1991. "Liability Issues." Pp. 289-310 in Drabek, Thomas E.
> and Gerard J. Hoetmer (eds.) *Emergency Management: Principles and
> Practice for Local Government*. ICMA: Washington, D.C.
>
> Scanlon, Joseph. 2003. "Transportation in Emergencies: An Often
> Neglected Story." *Disaster Prevention and Management* 12 (5):
> 428-437.
>
> Scanlon, Joseph. 1996. "Not on the Record: Disaster, Records and
> Disaster Research." International Journal of Mass Emergencies and
> Disasters." *International Journal of Mass Emergencies and Disasters*
> 14 (3): 265-280.
>
> St. Cyr, Joseph F. 2004. "Hazardous Materials and Emergency
> Management: A Primer on Hazmat Law." *Journal of Emergency Management*
> 2 (2): 47-51.

2.  Student Readings:

> McEntire, David A. 2006. "Overcoming Typical Challenges." *Disaster
> Response and Recovery: Strategies and Tactics for Resilience*. New
> York: Wiley.
>
> Scanlon, Joseph. 1996. "Not on the Record: Disaster, Records and
> Disaster Research." International Journal of Mass Emergencies and
> Disasters." *International Journal of Mass Emergencies and Disasters*
> 14 (3): 265-280.
>
> Scanlon, Joseph. 2003. "Transportation in Emergencies: An Often
> Neglected Story." *Disaster Prevention and Management* 12 (5):
> 428-437.
>
> Nicholson, William C. 2003a. "Litigation Mitigation: Proactive Risk
> Management in the Wake of the West Warwick Club Fire." *Journal of
> Emergency Management* 1 (2): 14-18.

3.  Handouts:

Typical record keeping problems

Questions to consider about record keeping

Lessons about transportation and disasters

Understanding negligence

Steps to reduce legal liability

**Supplemental Considerations:**

1\. The professor may wish to contact BMS Catastrophe to obtain
information regarding the restoration of vital records damaged in a
disaster. **Address:** 303 Arthur Street, Fort Worth, Texas 76107
**Phone:** (800) 433-2940 **Fax:** (817) 332-6728 **Email:**
<info@bmscat.com>

2\. If desired, students can be given an assignment to research local
ordinances and state legislation pertaining to disaster declarations,
response protocols and relief assistance. Findings can be shared in a
subsequent class through an oral presentation.

3\. PERI (the Public Entity Risk Institute) has created a documentary
DVD that helps lawyers understand disasters. It is entitled *Are You
Ready? What Lawyers Need to Know about Emergency Preparedness and
Disaster Recovery*. The DVD, and a supplementary course book, can be
purchased for \$35.00 by visiting <http://www.riskinstitute.org/> or
[http://bookstore.desyne.com/siteshopper.htm?cat=1&item=23](http://bookstore.desyne.com/siteshopper.htm?cat=1&item=23 ).

4\. Possible guest speakers for this session may include emergency
managers, police officers, transportation officials, public works
directors, emergency medical technicians, hospital personnel and city
attorneys.

**Objective 38.1 Understand the importance and difficulties associated
with record keeping in time of disaster, and identify ways to overcome
such challenges.**

Present the following as a lecture.

I. Record keeping appears to be a **neglected function** in both the
**disaster literature** and in **disaster response operations**
themselves (Scanlon 1996). For instance:

> A. **This is ironic** in that records play a large role in response
> operations.

1.  **"The absence of records about who is at a sports event or in an
    apartment makes it difficult to establish whether all the bodies
    have been recovered or, indeed, if there are bodies to recover"**
    (Scanlon 1996, 276).

2.  **Inaccurate records "can result in anguish for those with relatives
    involved in an incident"** (Scanlon 1996, 276).

3.  **Poor record keeping can lead to poor disaster management
    operations (e.g., not remembering who called and was willing to
    provide sandbags during a flood).**

4.  **Incomplete records can limit federal reimbursement of expenses
    during response operations.**

5.  **Lack of records can hurt the reconstruction** of the sequence of
    events and **curtail** **organizational learning** (hindering
    preventive activities or improved responses).

II\. Scanlon (1996) identifies **several problems associated with record
keeping and disasters**.

> A. **Records do not exist** before the disaster.

1.  There may be **insufficient or no records of the names of
    individuals at sporting events, outdoor concerts, papal masses, and
    those in hospitals, libraries, museums, and apartments**.

2.  "What is true for public and private buildings is true for public
    transportation. **It is not customary for buses or trains or ferries
    to record names of passengers.** When accidents occur, it takes
    time, especially if bodies are badly burned, to identify the
    victims" (Scanlon 1996, 269).

> B. **Record keeping fails after a disaster**.

1.  "Research into the 1917 Halifax explosion . . . shows that **neither
    the provincial hospital nor the city police department kept
    records"** (Scanlon 1996, 269).

2.  **"When a devastating cyclone hit the city of Darwin, Australia . .
    . key officials held a series of post-impact meetings. It took
    dozens of interviews to reconstruct who was there and what was
    decided. No one took minutes"** (Scanlon 1996, 269).

3.  **"After the 1985 air crash in Gander, Newfoundland, the airport
    duty manager forgot to turn on the tape to record discussions in the
    airport emergency center"** (Scanlon 1996, 269).

4.  **In the midst of response activities, there is often not enough
    time to accurately record the details of the disaster** (Hatfield
    1990, 28 as cited by Scanlon 1996).

> C. **Emergence makes record keeping difficult**.
>
> 1\. **"Initial response -- both search and rescue and transport to
> hospital -- is by family, neighbors, friends, and co-workers, rather
> than by emergency personnel. Individuals do not record what they have
> done and rarely leave anything to show where they have gone -- or with
> whom -- when they set out for \[the\] hospital"** (Scanlon 1996, 270).
>
> D. **Records are not reliable**.
>
> 1\. At a fatal apartment fire, **"the first problem was that no
> accurate list of tenants existed. The building manager's list was both
> inaccurate and incomplete. Other lists . . . were contradictory and
> also incomplete . . . Many rooms listed as containing a single
> occupant actually contained a couple (usually living . . . common
> law). Some rooms, though they existed and were occupied, did not
> appear at all on the manager's lists. And one man listed as having
> accepted temporary shelter from a welfare agency was later found to
> have died in the fire"** (Scanlon 1979, 136 as cited by Scanlon 1996,
> 271).
>
> 2\. **Airline, ferry, and other records may be equally inaccurate**.
>
> 3\. **"Very poor records are usually made of the medical processing
> and treatment of disaster victims, especially when a hospital receives
> a large number of them"** (Quarantelli 1983, 86 as cited by Scanlon
> 1996).
>
> 4\. **"Sometimes reliability problems occur because records created
> for one purpose are used for another. After a hospital fire,
> researchers used medical records to try to locate former patients.
> Many addresses were wrong"** (Scanlon 1996, 272).
>
> 5\. **"Estimates of attendance \[at special events or certain
> locations\] may also be unreliable -- for two reasons. Those who worry
> about fire regulations wish to downplay figures. Those who wish to
> show that their event is attractive overestimate"** (Scanlon 1996,
> 272).
>
> E. **Access to records is restricted**.
>
> 1\. **"A . . . problem occurred in Medicine Hat, Alberta, when a train
> derailment led to evacuation of a nursing home. The evacuation
> occurred so quickly the staff did not bring along patient records"**
> (Scanlon 1996, 273).
>
> 2\. **"When the Northridge earthquake hit California, one badly
> damaged building housed physicians, many of them psychiatrists. Local
> authorities ruled the building as unsafe. The physicians said it
> contained vital patient records. The authorities were adamant. They
> refused access until the building was demolished. Some physicians are
> suing"** (Scanlon 1996, 273).
>
> 3\. **"Secrecy can also be a problem. Much of what happened during the
> 1917 Halifax explosion was not revealed for decades because the
> incident involved the British, Canadian and American navies and the
> Canadian army and happened during wartime . . . . Secrecy is not a
> problem only in wartime. Firefighters trying to put out a chemical
> fire in England were not told what was manufactured in the plant"**
> (Scanlon 1996, 273).
>
> 4\. Note: the problems associated with **secrecy may be more prevalent
> in the future due to homeland security** concerns.
>
> F. **Records are lost or destroyed**.
>
> 1\. **"When the charter aircraft carrying U.S. soldiers crashed in
> Gander, Newfoundland, the soldiers' medical records were in the
> wreckage"** (Scanlon 1996, 274).
>
> 2\. **"There were also problems when the train derailed at
> Mississauga. Although police got a manifest from the train's
> conductor, they needed to see the numbers on wrecked cars. The
> darkness, flames, heat and leaking chemicals made that difficult and
> dangerous"** (Scanlon 1996, 274).
>
> 3\. **"Disasters also involve lost lives -- and, with those lives,
> crucial memories. Among those killed in the Halifax explosion were:
> the railway telegraph operator who sent out a message warning incoming
> trains; the fire chief, who had responded to a ship on fire; and the
> officer who notified the Admiralty that a munitions ship was burning
> in the harbor"** (Scanlon 1996, 274).
>
> 4\. **The Fort Worth tornado destroyed computers, and took away
> corporate documents and even classified FBI files** (McEntire 2002).
>
> 5\. **The terrorist attacks on 9/11 completely destroyed the city EOC
> and businesses lost records if they had no electronic backups**.
>
> G. **Records may be toxic**.
>
> 1\. **Many disasters involved hazardous materials, and "it follows
> that documents recovered after such events will be contaminated"**
> (Scanlon 1996, 275).

III\. There are a number of **steps** that can be taken **to overcome
record keeping challenges**.

> A. Before an event, "public and private institutions need to **think
> about record keeping before incidents occur**. The following questions
> may help:

1.  **If an incident happened, what sorts of records would be of
    value**?

2.  **How could such records be compiled now -- before something goes
    wrong**?

3.  **How can such valuable records be stored safely and still be
    available quickly in the event of an incident**?

4.  **Who should have access to these records and how should that be
    decided**?

5.  **What would all that cost**?

6.  **Is it worth it**?" (Scanlon 1996, 277).

> B. Try to **obtain records and vital data from a variety of sources**.
>
> 1\. In addition to **colleagues** and the **media**, **Killian
> suggests there are a number of records and means to save information
> for scholars; these might also be useful for practitioners**:
>
> a\. **Tape recorded interviews**
>
> b\. **Personal documents** (e.g., diaries)
>
> c\. **Agency and official letters**
>
> d\. **Police files**
>
> e\. **Building permits**
>
> f\. **After action reports** (Killian 1956).
>
> C. **Recognize the importance** **of records** and **take the time to
> note activities, names, numbers, and expenses accurately**.
>
> D. **Review records with others as soon as is feasible to reconstruct
> incomplete notes or elaborate on details.**

**Objective 38.2** **Comprehend transportation issues in disasters,
including the need for this function, possible problems, and recommended
solutions.**

Present the following as a lecture.

**I.** "**The disaster literature and case studies tend to skim over
\[transportation issues\]**. There appears to be no definitive material
showing how this fits into planning and response and how problems are
dealt with" (Scanlon 2003, 428-429).

II\. Nevertheless, **transportation issues have a close relation to
disasters and response operations because transportation systems
commonly deal with unexpected changes, special events, and severe
weather**.

> A. "Transit systems are **used to making rapid adjustments** when
> there is a sudden change in passenger volume. Because they **keep an
> eye on the weather,** they can often anticipate early closures but,
> even if there is no warning, their drivers and supervisors will soon
> spot a significant increase. They also are **used to making rapid
> adjustments when accidents or other untoward events force them to make
> changes in routes or adjust service because of congestion** -- and in
> some cases, for example in Los Angeles, \[the systems\] have
> arrangements to be notified if any emergency agency finds it necessary
> to **close all or part of a thoroughfare** or becomes aware of a
> closure. Transit systems also **plan for special events** -- for
> sports events, for concerts, even for Papal masses" (Scanlon 2003,
> 428).
>
> B. "**The school system in Prince Edward County, Ontario . . . \[has\]
> to be prepared for snowstorms**. Periodically, snow hits the area very
> hard and snow squalls send visibility to zero. Rather than make
> judgments from the board office, **the school system allows its
> drivers to decide if it is too dangerous to travel**. It has standing
> orders requiring schools to contact a parent or designated guardian
> before any child is sent home early. On 28 January 1977, when police
> advised the school superintendent of an approaching severe storm --
> the storm eventually left drifts as high as 10 meters -- he ordered
> all children to be sent home early. Several drivers had made the same
> decision the day before: '**Some drivers decided on their own, that
> the weather was too severe. They cancelled their runs . . . Some of
> the drivers who did operate . . . had second thoughts as the day wore
> on.** One driver . . . made his morning run but by 10:30 a.m. was back
> at the school picking up children, taking them home. **By the end of
> the day all drivers delivering children . . . had reached the same
> conclusion; by mid-afternoon the school was deserted except for
> teachers'**" (Scanlon 2003, 430).

III\. **Several transportation-related actors become involved in
disasters.**

> A. In disasters, **transit companies and "school buses are called on
> for . . . service especially in smaller communities where they may be
> the only form of mass transportation"** (Scanlon 2003, 431).
>
> B. "It's not just the public transit and school bus systems that have
> contingency plans. In the Toronto area, **the ambulance authority has
> a plan for a hospital evacuation.** As it is sending vehicles to
> assist the evacuating hospital, it is canvassing other hospitals to
> see how much bed space they have and how much room they have for
> specific types of patients. That allows it not only to move patients
> quickly but also to get them to a facility that will look after their
> special needs" (Scanlon 2003, 430).
>
> C. **"While ambulances and school buses are the key players, local
> transit companies may get involved"** (Scanlon 2003, 431).
>
> D. **"Police assist by keeping clear traffic lanes"** (Scanlon 2003,
> 430).
>
> E. In Fort Worth, Texas, **police officers controlled access to the
> downtown area affected by the March 2000 tornado**.
>
> F. **The police department, public works and transit authorities also
> worked together to keep people out of the Ground Zero area and ensure
> the continued movement of traffic after the 9/11 disasters**.

IV\. Emergency managers should be aware that **drivers, vehicles and
transportation systems help with evacuation and several other disaster
response functions**.

> A. In "Managing Response Operations," Perry (1991 as cited by Scanlon
> 2003, 429) notes that "**residents who do not own or have access to
> private vehicles . . . require transportation, which in turn requires
> that emergency managers identify vehicles to be used and their
> location**."
>
> B. "There are, however, occasions when the **public transit and other
> transportation systems are asked to respond to unexpected events,
> including emergencies and disasters**. When this happens, public
> authorities expect them to respond immediately -- and they do that --
> and expect them to resolve problems that cause disruption to their
> regular service. **When they do provide emergency assistance, what
> they do is established by others. For example, when school busses are
> servicing schools, they are directed by the school authorities; when
> they assist in a community emergency, they do whatever those in charge
> tell them"** (Scanlon 2003, 428).
>
> C. After the Port Arthur mass shooting incident, "**the remaining 13
> patients were dispatched by four road ambulances and a bus** which
> carried 7 patients under the care of two paramedics and volunteer
> ambulance officers. **The bus also carried a number of immediate
> families of the injured**" (Morgan et. al. 1997 cited by Scanlon 2003,
> 429).
>
> D. After a 1979 train derailment in Mississauga, Ontario, "police
> announced each evacuation in advance -- even showing maps on cable
> television -- then sent police officers door to door with police cars
> using loud hailers \[speakers\]. While most persons in Mississauga had
> their own vehicles and used them, some did not. **To take care of
> them, police arranged for Mississauga Transit busses to follow its
> officers. The buses took those without their own transportation to
> Square One**, a well-known shopping center, where Red Cross had
> established a reception facility" (Scanlon and Padgham 1980 cited by
> Scanlon 2003, 430).
>
> E. "In 2001, it was estimated that 2.2 million commuters were in New
> York City on a normal working day. With the collapse of the second
> World Trade Center tower on 9/11, **hundreds of thousands of such
> commuters, as well as other workers, residents and transients in the
> impact zone were mostly blocked off from leaving by the usual land
> route**. Streets around the impact area were debris-clogged and public
> transportation had ceased operations . . . . **At around 11 a.m. there
> began a massive evacuation \[possibly up to 500,000\], by a large
> number of boats and vessels that had converged on the sea walls and
> few docks in the area. The everyday ferries, tour and dinner boats and
> pleasure craft that normally carry passengers, were joined by far more
> numerous vessels such as tugs, outboard runabouts, pilot boats, and
> oil spill response vessels, a Coast Guard cutter and even a retired
> fire boat, that were never intended to carry passengers**" (Kendra et.
> al. 2002 in Scanlon 2003, 432).
>
> F. **"When an Air Ontario jet crashed near Dryden in Northern Ontario,
> Ontario Provincial Police requested school buses attend \[proceed\] to
> the crash site to help move the injured to the hospital"** (Scanlon
> et. al. 1979 in Scanlon 2003, 431).
>
> G. "**When 6,600 passengers were diverted** to Gander, Newfoundland
> after the terrorist attacks on 11 September 2001, it was **school
> buses that were used to transport them from the airport to shelters
> and back to the airport"** (Scanlon 431).
>
> H. **Transportation companies will also offer their services, carrying
> vital personnel and supplies from far around the world or country to
> the scene of a disaster**.
>
> I. In Peace River, Alberta, "**buses were used as road blocks to
> isolate the flooded area"** (Scanlon 2003, 432).
>
> J. In New York, after 9/11, **sand trucks were brought in to block off
> vehicle access to buildings that were regarded to be potential
> terrorist targets**.
>
> K. **"In 1877, when fire wiped out downtown Saint John, New Brunswick,
> Canada, foreign assistance came from Boston and it came by sea. In
> 1906, when an earthquake and tsunami devastated Sicily, assistance
> came from the Italian, British and Russian Navies. In 1917, when an
> explosion tore apart Halifax, Nova Scotia, Canada, the first foreign
> response came from the United States Navy. In 1974, when Darwin,
> Australia, was devastated by Cyclone Tracy, the bulk of the assistance
> was provided by the Royal Australian Navy. In 1992, when Canada
> offered assistance to the United States after Hurricane Andrew, the
> Royal Canadian Air Force determined what was to be done but supplies
> and most personnel arrived on the Canadian Navy supply ship
> Protecteur. In 1995, even though much of Kobe Harbor was destroyed,
> some relief workers and supplies came in over the seven wharves that
> were still usable"** (Scanlon 1996a cited by Scanlon 2003, 433).
>
> L. After floods in the Terrace area of British Columbia,
> **"helicopters . . . brought in all the stranded motorists and about
> 50 loggers stranded at two different camps. Later, they flew in
> medical supplies to isolated communities, flew out people needing
> medical care, flew in food . . . to those who called for help, and
> carried individuals separated from their families"** (Scanlon and
> Taylor 1978 cited by Scanlon 2003, 433).

V. **Transportation systems can be severely disrupted in disasters.**

> A. **Earthquakes in California have dismantled major highways** (e.g.,
> the Cypress Freeway after the Loma Prieta disaster in San Francisco).
>
> B. Because of a series of **mudslides, there were "substantial
> washouts -- large sections of the road \[had\] fallen away. In other
> places, the roads were covered with water, possibly concealing unknown
> dangers**. Some private cars were forced into logging roads. One group
> ended up traveling across an abandoned mine site. **Some drivers
> caught in the rising water simply had to abandon their cars"**
> (Scanlon et. al. 1976 cited in Scanlon 2003, 431).
>
> C. **Flooding in Houston after Tropical Storm Allison shut down major
> roads and highways for several days**.
>
> D. **The collapse of the World Trade Center affected subway operations
> and tunnel traffic in New York**.
>
> E. The transportation of **donations can cause serious traffic jams as
> was the case after Hurricane Andrew in Florida** (Neal 1994).
>
> F. After the 1995 Kobe earthquake in Japan, **roads were blocked by
> debris, which inhibited the movement of fire fighters and their
> equipment**.
>
> G. **Mass evacuations from hurricanes can tie up roads for hours and
> days at a time**.
>
> H. In the aftermath of the Tangshan earthquake in China, **"all
> highways leading into Tangshan had been severely damaged and only a
> few were open to traffic. Suddenly the remaining serviceable roads
> were crowded with vehicles anxious to rush to the area to help. A huge
> traffic jam was created, with cars not being able to move in or out.
> Great confusion followed, until the central office stepped in with
> traffic teams. Finally, on July 30, the traffic impasse was eased to
> allow smooth transportation of relief supplies and personnel"** (Young
> et. al. cited by Scanlon 2003, 434).

VI\. **Transportation resources and systems can and should be utilized
in response operations.**

> A. **"A protocol also needs to be developed -- usually in connection
> with the warning function -- to inform residents that transportation
> is available, where boarding stations are located. And what
> possessions may be transported"** (Perry 1991 as cited by Scanlon
> 2003, 429).
>
> B. **"It seems clear that transit systems use both planning and
> experience to deal with predictable events. It appears, however, that
> their response to emergencies is ad hoc rather than planned, though it
> often flows from their experience with adjustments caused by accidents
> and weather"** (Scanlon 2003, 435).
>
> C. **"Despite the occasional problems, the evidence suggests that
> transportation services have responded quickly when asked and
> generally performed well in emergencies -- no matter what they were
> asked to do"** (Scanlon 2003, 435).
>
> D. **"Transit authorities were in the EOC in Edmonton during a
> tornado, keeping abreast of the problems with roads blocked by debris
> and flooding, making sure their services were available when they were
> needed"** (Scanlon 2003, 435).

E.  "If transportation companies are simply called on at short notice,
    **why is their response usually so quick and so effective?** There
    would appear to be a number of answers.

    1.  The first is that **transportation companies are always dealing
        with minor problems that disrupt their schedules, such as those
        cause by traffic accidents, spills and, most important,
        weather**.

    2.  Second, most such companies **have experience with special
        events** -- major sport events, concerts, even Papal visits.
        **Disasters create the same kind of demands:** thus the required
        response is a familiar one even though the timing is unexpected.

    3.  Third, most transportation companies operate during two peak
        periods: if the demand for assistance comes at any other time,
        **they have staff and equipment available**.

    4.  Fourth, it would appear that **transportation systems treat
        requests for emergency assistance as a priority, and are willing
        to adjust their regular service if this is required**.

    5.  Perhaps more important, when transportation systems are called
        on to provide help in an emergency, **they are doing, for the
        most part, what they normally do, taking persons from one place
        to another"** (Scanlon 2003, 436).

**Objective 38.3 Identify potential legal concerns facing emergency
managers and first responders, and mention ways to minimize impacts.**

Present the following information as a lecture.

I. **Post-disaster operations** have a **close connection** to the
**law** and **legal statutes**.

> A. Many **federal laws** were established after disasters to permit
> the **disbursement of federal funds** to disaster victims (i.e.,
> individuals and communities) and to **manage response and recovery
> efforts**.
>
> 1\. The **Congressional Act of 1803**, regarded as the first piece of
> disaster legislation, was established to **provide federal relief
> assistance** to a town in New Hampshire that was adversely affected by
> a fire.
>
> 2\. **From 1803 to 1950**, there were **over 100 disasters that
> received similar ad hoc decrees** (including the earthquakes in 1906
> and 1933, and flooding in 1934).
>
> 3\. In 1950, **the Federal Disaster Act established permanent
> legislation to ensure continuous relief and standard processes for its
> delivery** for those communities needing to rebuild critical
> infrastructure.

4.  In 1969, Hurricane Camille led to the creation of the **Federal
    Disaster Assistance Administration** in the Department of Housing
    and Urban Development.

5.  The **Disaster Relief Act of 1970 was introduced to minimize the
    fragmentation** of federal recovery programs.

> 6\. The **Disaster Relief Act of 1974 streamlined the presidential
> disaster declaration process**.
>
> 7\. In 1979, legislation was passed to **create the Federal Emergency
> Management Agency (FEMA)** **by integrating several organizations from
> HUD** (the Federal Insurance Administration, the National Fire
> Prevention and Control Administration, the National Weather Service
> Community Preparedness Program, the Federal Preparedness Agency of the
> General Services Administration and the Federal Disaster Assistance
> Administration) **and the Defense Department's Defense Civil
> Preparedness Agency**.
>
> 8\. In 1988, **the Robert T. Stafford Disaster Relief and Emergency
> Assistance Act expanded the definition of what events could be
> considered as a disaster and specified who could receive assistance,
> for what purposes, and how it should be administered**.
>
> B. The **Code of Federal Regulations 44: Emergency Management and
> Assistance stipulates regulations dealing with recovery**, including a
> description of the role of the Office of the Inspector General, damage
> assessment procedures, agreements with non-profit organizations, and
> types of assistance to be given to disaster victims and jurisdictions.
>
> C. There are numerous laws that have to be followed regarding
> **response to hazardous materials incidents**. Some of them include:
>
> 1\. **The Comprehensive Environmental Response, Compensation and
> Liability Act (CERCLA)**
>
> 2\. **Title 29, Section 1910.1200 of the Code of Federal Regulations**
>
> 3\. **Federal Food, Drug, and Cosmetic Act**
>
> 4\. **Toxic Substances and Control Act (TOSCA)**
>
> 5\. **The Superfund Amendments and Reauthorization Act (SARA).**
>
> 6\. **The Emergency Planning and Community Right to Know Act (EPCRA)**
>
> 7\. **The Federal Insecticide, Fungicide, and Rodenticide Act
> (FIFRA)**
>
> D. In 2002, the federal government passed the **Homeland Security
> Act** which **combined 22 federal agencies into the Department of
> Homeland Security**. This later resulted in the creation of the
> **National Response Plan** and the **National Incident Management
> System**.
>
> E. **States** have also **passed** a number of **laws** regarding
> **disaster response**.
>
> 1\. For instance, states have also **enacted** **legislation** in
> order **to create state emergency management agencies**.
>
> 2\. State statutes also **endorse federal disaster laws and
> regulations**, and **limit** the **liability** of those working in
> emergency management (although the laws are not uniform across all
> states).
>
> F. **Local jurisdictions** have likewise **established**
> **ordinances** concerning disasters.
>
> 1\. Some **ordinances** mandate the **creation and function of
> emergency management offices and programs**.
>
> 2\. Other **ordinances discuss local disaster declarations** **and**
> the management of **response operations**.
>
> G. There are **other organizations** that **have** **created
> resolutions** which may have an impact on current and future emergency
> management law.
>
> 1\. **The National Fire Protection Association (NFPA) created *NFPA
> 1600: Recommended Practices for Disaster Management****.*
>
> a\. **"NFPA 1600 establishes a shared set of norms for disaster
> management, emergency management, and business-continuity programs. .
> . . One vital aspect of NFPA 1600 is its requirement that all
> emergency management and business-continuity programs comply with its
> relevant laws, policies, and industry standards"** (Nicholson 2005b,
> 44).
>
> b\. NFPA 1600 has been **recommended or endorsed by various
> organizations including the 9/11 Commission, the National Emergency
> Management Association, and others**.
>
> 2\. There has also been **growing recognition and support** **of**
> other related documents such as **the** **Capability Assessment for
> Readiness (CAP) and the Emergency Management Accreditation Program
> (EMAP).**
>
> H. In spite of the importance of law relating to emergency management
> and response operations, **"FEMA educational materials are noticeably
> lacking when it comes to coverage of legal issues"** (Nicholson 2003a,
> 17).
>
> I. **Those involved in disaster response operations** should ensure
> that they are **familiar with** these and any other **pertinent
> legislation** that may **impact their** **job and legal liability**.

II\. Those involved in disaster response should **be aware** of the
**possibility of lawsuits** and the **types of legal claims** that can
be brought against them.

> A. **It is true that** **"units of government enjoy immunity, or
> protection from legal liability, for many of their activities."**
> (Nicholson 2005a, 12).
>
> 1\. **"Disaster response statutes and common law provide customary
> defenses and immunities for protection of emergency responders who are
> working in the capacity of a government employee"** (Nicholson 2005a,
> 12).
>
> 2\. **"An official acting within the scope of his or her authority is
> immune from liability if he or she acted reasonably and is not
> depriving a person of settled, protected rights"** (Pine 1991, 301).
>
> 3\. **"Public officials therefore enjoy immunity for discretionary
> judgments and decisions made within the scope of their positions. . .
> . Discretionary actions are policy decisions that chart the direction
> and extent of policies, programs, and activities. They are
> distinguished from activities that implement policies, such as
> operational or ministerial actions. Questions that clarify whether a
> decision is a discretionary action include the following:**
>
> a\. **Does the decision involve a basic governmental policy or
> program?**
>
> b\. **Does the decision chart the course or direction of a program,
> activity, policy or objective (as opposed to a decision that is
> required to implement the policy)?**
>
> c\. **Does the decision require the exercise of basic policy judgment
> or expertise on the part of the governmental actor?**
>
> d\. **Does the governmental agency have the proper authority to make
> the decision?**
>
> e\. **If the decision of the governmental agency or official involves
> these elements, the decision is discretionary and protected by
> immunity" (Pine 1991, 293-294).**
>
> 4\. **"This immunity is not, however, unlimited"** (Nicholson 2005a,
> 12).
>
> 5\. **"Before 1960, few states allowed civil suits against public
> organizations. The state (including local government units) was
> protected by sovereign immunity, statutory immunity, or immunity based
> on case law. Today the situation is very different: in many states,
> individual citizens and private businesses may file civil suits
> against public organizations for injunctive relief (court orders) and
> many damages are payable from the public treasury"** (Pine 1991, 289).
>
> 6\. **One expert** on disaster law **states "I firmly believe that
> liability issues are the great unplanned-for hazard faced by emergency
> managers"** (Nicholson 2003a, 17).
>
> 7\. **"Decisions made and actions taken in emergency management
> activities can result in liability suits and judgments"** (Pine 1991,
> 289).
>
> B. **"Claims that involve constitutional rights or federal statutory
> violations are brought in federal court"** (Pine 1991, 297).
>
> 1\. Congress passed **civil rights legislation in 1871** that holds
> accountable public officials who deny rights established by the U.S.
> Constitution.
>
> 2\. **"In disasters, local officials sometimes limit freedom of
> association, the use of public communication channels, or entry into
> evacuated areas, all of which pose the potential for violation of
> First Amendment rights"** (Pine 1991, 300).
>
> 3\. The **Civil Rights Act of 1964 and Equal Employment Act of 1972**
> **prohibit discrimination** based on factors of race, color, sex,
> religion and national origin.
>
> 4\. An example of this is the **distribution of relief or treatment of
> employees in a preferential or discriminatory manner, which may also
> result in lawsuits**.
>
> C. **"Negligence occurs when the careless action or inaction of
> employees or volunteers causes injuries or property damage. Claims of
> negligence are issues of state law and are brought in state court"**
> (Pine 1991, 289).
>
> 1\. "Negligence is either **a failure to do what the reasonable and
> prudent person would have done** under the circumstances or an action
> that unintentionally harms another. It occurs when **a person owes a
> duty to another but fails to exercise due skill, diligence, or care,**
> with the result that **the other person is injured**" (Pine 1991,
> 292).
>
> 2\. "The **elements** of negligence **include**:
>
> a\. The **existence of a duty**, recognized by law, for a person (the
> governmental agency, employee, or agent) to conform to a defined
> standard of care (or conduct). This standard of care may evolve
> **from** **common law** (previous practice or judicial decision) or
> **from a statute**.
>
> b\. **A failure to carry out the standard** of care or prescribed
> duty.
>
> c\. A **connection** **between the action** of the government agency,
> employee, or agent **and the resulting injury** to a third party such
> that the law recognized the action as the legal cause of the harm.
>
> d\. **Actual loss or damage** to the interest of the injured party"
> (Pine 1991, 292).
>
> 3\. **"Suits involving claims of negligence filed by citizens,
> businesses, or interest groups" are known as tort** (Pine 1991, 289).
>
> 4\. "For example, a state statute may require state and local agencies
> to prepare and keep current an emergency preparedness plan for
> natural, technological, or civil disasters. **If a local government
> failed to prepare a plan and a disaster occurred, a citizen could file
> a suit claiming that the governmental unit had failed to carry out a
> statutory duty** and was therefore liable for losses" (Pine 1991,
> 293).
>
> 5\. "In the field of emergency management, for example, **a tort could
> involve a failure to warn citizens of a known hazardous materials
> release or a failure to provide adequate time for an evacuation order
> in a natural disaster"** (Pine 1991, 289).
>
> 6\. "**Individuals have filed tort actions** against public agencies
> **for failing to respond to their emergency needs**, and businesses
> have filed suits claiming that **the response was mismanaged** and
> caused business interruption" (Pine 1991, 289).
>
> 7\. **Medical lawsuits are very common if victims have been
> misdiagnosed, treated inadequately, or if there are problems with
> consent, record disclosures, reporting requirements or other issues**
> (Hafter and Fedor 2004; Mancini and Gale 1981).
>
> 8\. Legal action may be taken across jurisdictions if there have been
> **problems with mutual aid agreements.**
>
> **a.** For instance, **a fire fighter from another jurisdiction was
> killed when he responded to an incident in Fort Worth, Texas**; a
> **dispute arose** between the cities **regarding** who would pay
> **death benefits**.
>
> 9\. There are **other reasons why lawsuits and prosecution** **might
> occur in emergency management and after disasters.**
>
> a\. **Some include** t**raining accidents, vehicle accidents, delayed
> 911 dispatch, delayed emergency response, failure to follow response
> protocols, and licensing of volunteers** (Williamson 2003b).
>
> b\. **Failure to follow state and federal laws and regulations**
> **regarding the use of disaster funds can also lead to legal
> troubles**.
>
> c\. **Lawsuits may occur if there is a failure to comply with statutes
> pertaining to hazardous materials planning, record-keeping and
> disclosure**.

III\. **Those involved in response operations should be aware of what
can be done to minimize legal liability.**

> A. "Clearly, public officials and government units are not always
> liable for injuries and property damage resulting from disasters and
> response efforts: **the key is to clarify when legal accountability
> exists and when immunity exists"** (Pine 1991, 291).
>
> B. "To protect from litigation, **state legislatures may incorporate
> into tort law liability immunities for negligent official acts"**
> (Nicholson 2005a, 12).
>
> 1\. **"State disaster or emergency statutes often contain more
> specific immunity provisions to protect government officials engaged
> in critical decision-making procedures in emergencies.** **Some states
> have gone further, putting into place broad immunities shielding a
> variety of players** (i.e., the state, political subdivisions, or
> local government entities) **who act during an emergency response**
> rather than just the individuals involved in decision making"
> (Nicholson 2005a, 12).
>
> 2\. **"Some states make particular immunity provisions for emergency
> workers, whether volunteers or employees. Also, immunities exist for
> people owning or controlling real estate or motorized vehicles who
> voluntarily authorize the use of their property during an emergency.
> So called 'Good Samaritan' statutes may also provide immunity to
> certain classes of emergency medical responders, although they may not
> apply if the responder is working in an official capacity"**
> (Nicholson 2005a, 12).
>
> C. Another measure is to **develop and follow SOPs that "address
> various legal subjects, including OSHA compliance, employment
> practices, business and government ethics, conflicts of interest and
> other topics specific to the business or unit of government
> involved"** (Nicholson 2003a, 16).
>
> D. "The most important step is to **become a proactive risk manager**,
> one aspect of which is **enlisting legal counsel as a partner in
> preventing future liability**. Legal counsel can provide input before
> problems arise to lessen the likelihood of liability" (Nicholson
> 2003a, 15).
>
> 1\. **"Proactive partnering with attorneys is an approach that is
> contrary to the way many organizations normally do things.**
> **Traditionally, business or government managers view the attorney as
> a 'legal firefighter' whom they call after the legal blaze has
> erupted. A lawyer's first contact with the client often occurs when
> the client says over the phone, 'someone is suing me!'"** (Nicholson
> 2003a, 16).
>
> 2\. "**These** **managers should also consider that their attorney
> might have a role analogous to a fire inspector going through a
> building to identify fire hazards. The attorney partner in mitigation
> can often recognize the tinder for a legal blaze and point out
> inexpensive ways to lessen the danger"** (Nicholson 2003a, 16).

3.  "Local officials should recognize that their actions in responding
    to a disaster could conflict with citizens' rights. **Before
    implementing emergency management decisions,** **officials should
    consult legal staff to minimize the adverse effects of their
    actions"** (Pine 1991, 300).

> E. It is necessary to **pursue a policy of "litigation mitigation"**
> (an active effort with city attorneys to prevent legal liabilities)
> and accept the need to **spend time, effort and money now to avoid
> future lawsuits**.
>
> 1\. **"Litigation mitigation has three goals: lowered exposure to
> legal claims; increased life safety; and augmented protection of
> property"** (Nicholson 2003a, 15).
>
> 2\. "While it is true that attorneys cost more per hour than other
> types of mitigation, **the benefits of enhanced safety are well worth
> the cost"** (Nicholson 2003a, 17).
>
> 3\. **"Litigation mitigation will ideally lower fees for attorneys in
> the wake of future legal difficulties"** (Nicholson 2003a, 16).
>
> F. **"Only where litigation mitigation is actively practiced can
> leaders confidently state that they have made every effort to save
> lives and protect property"** (Nicholson 2003a, 18).

**Questions to be asked:**

1.  **Why are records important for disaster response operations in
    particular and emergency management in general?**

2.  **What are the barriers that inhibit effective record keeping in
    disasters?**

3.  **What must be done to keep accurate records before and after
    disasters strike?**

4.  **Why is transportation important for disaster response
    operations?**

5.  **How do disasters disrupt transportation systems?**

6.  **What can be done to better manage transportation systems and
    resources in times of disaster?**

7.  **What is the relation between legal statutes and emergency
    management?**

8.  **What types of lawsuits can be brought against those working in
    emergency management and disaster response operations?**

9.  **How can those involved in response operations protect themselves
    and their community from legal liability?**

**Typical Record Keeping Problems**

**(Scanlon 1996)**

-   **Records do not exist**

-   **Record keeping fails after a disaster**

-   **Emergence makes record keeping difficult**

-   **Records are not reliable**

-   **Access to records is restricted**

-   **Records are lost or destroyed**

-   **Records may be toxic**

**Questions to Consider about Record Keeping**

**(Scanlon 1996, 117)**

1.  **"If an incident happened, what sorts of records would be of
    value**?

2.  **How could such records be compiled now -- before something goes
    wrong**?

3.  **How can such valuable records be stored safely and still be
    available quickly in the event of an incident**?

4.  **Who should have access to these records and how should that be
    decided**?

5.  **What would all that cost**?

6.  **Is it worth it**?"

**Lessons about Transportation and Disasters**

-   **The disaster literature and case studies tend to skim over
    transportation issues**.

-   **Transportation issues have a close relation to disasters and
    response operations because they commonly deal with unexpected
    changes, special events, and severe weather**

-   **Several transportation-related actors are involved in disasters**

-   **Drivers, vehicles and transportation systems help with evacuation
    and several other disaster response functions**.

-   **Transportation systems can be severely disrupted in disasters.**

-   **Transportation resources and systems can and should be utilized in
    response operations.**

**Understanding Negligence**

**"The elements of negligence include:**

> **a. The existence of a duty, recognized by law, for a person (the
> governmental agency, employee, or agent) to conform to a defined
> standard of care (or conduct). This standard of care may evolve from
> common law (previous practice or judicial decision) or from a
> statute.**
>
> **b. A failure to carry out the standard of care or prescribed duty.**
>
> **c. A connection between the action of the government agency,
> employee, or agent and the resulting injury to a third party such that
> the law recognized the action as the legal cause of the harm.**
>
> **d. Actual loss or damage to the interest of the injured party" (Pine
> 1991, 292).**

**Steps to Reduce Legal Liability**

-   **Clarify accountability and liability in legislation**

-   **Develop and follow SOPs that address all types of legal subjects**

-   **Enlist legal counsel as a partner in emergency management**

-   **Pursue a policy goal of "litigation mitigation"**

-   **Recognize benefits of legal efforts**