# Presentation: 199307

## Legal Issues in Emergency Services

- Developed as part of the National Emergency Services Curriculum Project

**Notes:**
This briefing is meant to be presented to mission personnel and administrators to inform them of the legal issues that CAP faces.  It does not replace good legal counsel though.  Emphasis must be placed on informing the member of the problems out there while making sure that the legal staff is not only available for commanders, but every member who needs legal advice to support our missions.

## COMMUNICATION IS THE KEY

- This presentation will not answer all of your questions about liability, BUT your local legal counsel CAN

**Notes:**
Self explanatory

## The Threat

- Case Filings are generally increasing
- Claims against the government are dramatically increasing
- Plaintiff chances of winning are increasing
- Award sizes have increased

**Notes:**
CAP as a whole has been very lucky in that it has not had many cases where members mission skills are brought into question, but that does not mean that the potential is not there. 
 As we are often seen as being or at least being a part of the government, it is important for CAP members to realize that may make us a bigger target.
As is often seen in the United States, the population often pulls for the underdog.  Well, in legal issues, we can often be portrayed as the big bad organization trampling on the rights of an individual, and that does not look good in the eyes of the public, especially a public sympathetic to the underdog.  The underdog could very well win their case, and as sympathetic juries often recommend the award, it is not often in our favor.  Also, just because cases have not gone to court does not mean that we have not had to pay.  It is often easier to settle out of court rather than face public scrutiny and the negative press that comes with it.

## Deep Pockets

- Government bodies of all types are assumed to have *DEEP POCKETS* and are believed to be able to pay large settlements and awards
- Civil Air Patrol is seen this way though we are a non-profit corporation in reality

**Notes:**
We are often considered an instrument of the government, and that makes us a target simply because we are seen as having a lot of money.  We all know that is not true, but perception is often different than reality.
Members also need to be aware that when we are working as an instrumental of the government that agency, typically the USAF, can be held accountable for paying to fix the problems we created.  That may save CAP from paying for it, but may also eliminate CAP as a viable resource the next time.  Nobody calls on the resource that costs more than the benefits they provide.  Additionally, those agencies will often do a lot of checking and put us under scrutiny before they pay for anything, and if the member was not operating within the rules (normally our own rules) then the coverage normally afforded to that member may no longer be provided, again opening CAP or the individual member up to more liability.

## Tort Liability

- Tort
- An action that harms another person, business or group
- Occurs when a person or group of people act, or fail to act, without right, and thus harm another directly, or indirectly

**Notes:**
Self explanatory
Several types of torts that may be applicable to CAP and its membership are noted on the following slides.

## Tort Liability Continued

- Strict Liability
- Violation of the law or other regulations, even if violation is unintentional
- Intentional Liability
- Known violation of the law or other regulations and harm results
- Breaking Traffic Laws

**Notes:**
Self explanatory

## Tort Liability Continued

- Negligent Liability
- Person fails to do what a reasonable and prudent person would have done under the same or similar circumstances
- Basic First Aid
- Warrant Liability
- Promised service level is not delivered and harm results
- Failure to support MOUs

**Notes:**
CAP’s leaders often shape the way we do business.  This in many cases limits what we can do on our missions.  Members need to be especially careful that they do not overstep their bounds or overstate them.  Typically our personnel will be legally protected if they follow the regulations and do what they are trained to do.  If a member tries to do something that they were not trained to do or were not qualified to do, then they could be considered negligent.  Additionally, if you pass CAP off as having certain capabilities that the organization truly does not then you can also expose CAP to warrant liability.  That is the reason why our regulations often dictate the level of training required as well as require the legal counsel at various levels to see what is being promised  on a day to day basis – to avoid committing our personnel to things that they cannot do or provide.

## Tort Liability Continued

- Civil Rights Liability
- Constitutional rights are violated
- Physically restraining public from entering accident site

**Notes:**
Self explanatory

## Elements of Liability

- Four elements must be present to prove liability:
- Duty or standard to act
- Breach of duty - either an action or omission
- Failure caused the harm
- Actual measurable loss or harm

**Notes:**
Self explanatory

## DUTY TO PERFORM

- Existence of duty establishes standard of conduct

**Notes:**
If your personnel have accepted the responsibility for the job, then they can be held accountable for it, and to the accepted standards for the job.

## FAILURE TO PERFORM

- Breach of the duty required to prove negligence

**Notes:**
If you don’t do the job that you signed up for, you can be held accountable.

## FORESEEABLE CAUSE

- Failure to perform duty results in direct or indirect harm

**Notes:**
If there was any way that you could predict that something would go wrong and would not be able to accomplish your mission satisfactorily, then you can be held accountable.

## Harm

- There must be a measurable harm caused through:
- Damage to property
- Physical injury
- Mental anguish

**Notes:**
Measurable harm is not always easy to define or subject to the laws of common sense.  Damage to property may not be readily apparent, depending on what the property is used for.  Physical injuries do not often show up until well after an accident, or at least are not known to the accused.  And mental anguish, can almost always be claimed – when you cause a problem for another individual, they can inevitably make a claim for the associated stress.

## ELEMENTS OF LIABILITY

- All four elements MUST be present to prove that liability exists

**Notes:**
Self explanatory

## GOVERNMENT IMMUNITY

- Sovereign Immunity has been steadily eroding since the 1960s

**Notes:**
Self explanatory

## Types of Immunity

- Absolute
- Discretionary
- Qualified
- Statutory

**Notes:**
This is a summary slide.

## Absolute Immunity

- Absolute immunity is enjoyed by very *few *officials:
- United States President
- Judges

**Notes:**
Though this may seem self explanatory, students need to realize that absolute immunity is not always absolute.  It is often directed at the office, and if the person does something in violation of the rules of that office or in a capacity not related to their office then they can probably be held accountable and their immunity disappears.

## DISCRETIONARY IMMUNITY

- Covers the formation of *policy*, not its implementation

**Notes:**
In many cases certain people or groups are given certain immunity as a matter of law, but that law may be subject to interpretation.  And just because a law grants someone immunity, does not mean that the coverage is automatic.  If the person is found to be operating outside of their established guidelines or the parameters of their job, then they may be held accountable.

## STATUTORY IMMUNITY

- Created by legislation -
- “Good Samaritan” provisions

**Notes:**
Certain individuals are often given some coverage just for doing their job, or what is commonly acceptable.  There are often caveats to this though.  For example, though many states have Good Samaritan laws, they are not all the same.  Some require people to have certain training before they will be covered, while others simply say that as long as you do what a reasonable person would do in the same situation, you will be covered.  Check to see what it is in your jurisdiction.

## Qualified Immunity

- Sometimes known as “Limited Immunity”
- Often Statutory in nature
- Requires certain actions to be taken prior to filing a suit

**Notes:**
Certain people or organizations will be offered immunity in exchange for certain actions.  This is what is often seen when some turns states evidence during legal proceedings.  In return for total immunity or even some reduction in sentence or level of crime, people will often testify against others.  Understand that just because you and your buddy agreed to cover something up, that doesn’t mean he will wait for you to turn him in.  It is better to keep your nose clean and admit when you make mistakes – it works out a lot better in the long run for all parties involved.

## IMMUNITY

- You may be required to prove,
*in court*,
- that your actions are immune

**Notes:**
Remember that immunity is not automatic.  It may have to be proven to your “peers”.

## How Liability May Arise

- Problems with PLANNING
- Poor Plans
- Out-of-date plans
- Unrealistic plans
- Problems with TRAINING
- No training
- Undocumented training
- Unsafe training

**Notes:**
Self explanatory

## How Liability May Arise Continued

- Problems with NOTICE
- Hazards not identified
- Hazards not prioritized
- Hazards ignored
- Problems with duty to WARN
- Warnings not given
- Improper warnings given
- Warning systems not fully utilized

**Notes:**
Self explanatory

## How liability May Arise Continued

- Problems with NEGLIGENT OPERATION
- Equipment not employed properly
- Plans/procedures not followed
- Equipment not maintained
- Problems with VICARIOUS LIABILITY
- Personnel not trained
- Standards not present and/or enforced

**Notes:**
Negligence is a key component to liability.

Vicarious Liability exists when there is an assumption or presumption of skill that isn’t present.  Guilt by association. 

## How Liability May Arise Continued

- Problems with INVERSE CONDEMNATION
- May not be applicable to all jurisdictions
- When harm is identified, provide quick remedial action
- Problems with ATTRACTIVE NUISANCE
- Remember Murphy’s Law
- Take special precautions
- Be aware of children’s actions

**Notes:**
INVERSE CONDEMNATION is also like GUILT BY ASSOCIATION and VICARIOUS LIBILITY. 
Just because you are associated with a group or the person seen, rather than being behind the scenes, you will be a target.  Also remember that you may not have done anything wrong, but if someone that works for you did you may also be held accountable. (RESPONDANT SUPERIOR)  
Remember, the boss is always accountable, not always knowledgeable.
ATTRACTIVE NUISANCE usually refers to children

## Standard of Care

- Always changing for any community
- Standard of Care five years ago, may not apply today

**Notes:**
Remember that continuing education is a requirement for everyone for a reason – by staying abreast of changes you can often avoid risk.

## Standard of Care Continued

- Considerations in determining Standard of Care include:
- Cost/Benefit analysis
- Capabilities of in-place systems
- Capabilities of similar systems
- Court decisions/rulings
- What is reasonable under the same or similar circumstances?

**Notes:**
There are many factors in determining the standard of care, don’t just focus on one area.  Personnel often only focus on what is in their best interest or meets their individual needs, and not the needs of the group.  We might have some personnel that are trained to higher skill levels, but not all of our personnel can provide that same standard which means we can’t often market ourselves at the higher standard.
Also, be careful to consider the alternatives.  Just because you have never encountered this problem before is often not considered a good enough excuse in the eyes of the public.

## STANDARD OF CARE Continued

- You must work to keep *current* in your field to meet *changing* requirements

**Notes:**
Self explanatory

## Working with Legal Counsel

- Your local attorney can help define and limit liability
- Maintain *regular* contact with your legal counsel.  There should be *ongoing, effective communication*
- Local legal staff should be an *integral* part of the planning and response systems

**Notes:**
Self explanatory

##  Aircraft Crash Laws

- The National Transportation Safety Board (NTSB) is responsible for the investigation and determination of probable cause in aircraft accidents, as well as keeping a public record of the same.
- Title 49 of the US Code
- Additional guidelines available in FAA regulations and CAP Safety Regulations

**Notes:**
Self explanatory

## Trespassing

- AFRCC can’t authorize ground teams to enter private property
- Get Law Enforcement Assistance or Owner’s Permission or BOTH
- You have no more rights than a regular citizen
- ELT signal is not necessarily cause for entry

**Notes:**
Self explanatory

## Assault & Battery

- BE NICE - You are *never* authorized to use force in executing your duties.
- Don’t yell at, push, shove or otherwise restrict people from entering crash sites/crime scenes; that is a law enforcement job
- Remember that everything you do on a CAP mission reflects not only upon yourself, but every other member of the organization

**Notes:**
Self explanatory

## Summary

- Liability issues are complex and varied
- Workshop should raise more questions, than to provide answers
- Answers to questions are available through your local legal counsel
- Success will depend on the follow-up actions you take in the next few days

**Notes:**
Try to have contact information available for the local legal counsel so that members know who to contact and how.

## Legal Tasks

- Anything that you do as a member of the Civil Air Patrol Emergency Services Team could have legal ramifications.
- Stay alert and aware
- Operate within the law
- Operate within CAP Regulatory Guidance
- Do your job as you have been trained, if you do that, we don’t normally have any problems

**Notes:**
Self explanatory

## QUESTIONS?

**Notes:**
Self explanatory