Monthly Archives: February 2015

Are Safe Rooms the New “Standard of Care”?

Are Safe Rooms the New “Standard of Care”?

Emergency Management.com ran an article by Emily Younker of the Joplin Globe talking about the catastrophic tornado spurring an explosion of school safe-room projects throughout Southwest Missouri and Kansas. As Emily notes, the National Oceanic and Atmospheric Administration (NOAA) that Missouri, Kansas and Oklahoma sees a combined average of 203 tornados a year. With this in mind, do safe rooms need to become the new standard?

In law, negligence is broken down into four basic elements: Duty, Breach, Causation (both actual and proximate), and Damages. While i’ll spare details of Causation and Damages, establishing a Duty can be very important considerations. A Duty is defined as a “legal obligation, the breach of which can result in liability….” (1). Further, a ‘duty of care’ is a requirement that a person act toward others and the public with the watchfulness, attention, caution, and prudence that a reasonable person in the circumstances would use….” (2). With all this in mind, what does this mean to Emergency Managers? A Breach occurs when someone who is required to maintain a ‘standard of care’ fails to do so.

In the Preparedness and Mitigation Phases of the Emergency Management Cycle, we conduct risk assessments to simply identify which projects and hazards we should focus our efforts on. By assessing our risks, do we now established a ‘duty of care’? Maybe. On May 22nd, 2011 the catastrophic tornado hit Joplin, Missouri while Stan Kirk was one of 158 people shopping in Wal-Mart. Sadly Mr. Kirk was killed during the storm and his family sued Wal-Mart and the Wal-Mart Store Manager in a wrongful death suit, alleging the Store Manager negligently failed to, among other things, do a risk assessment and identify safe-rooms for customers within the store (3). In January 2013, the U.S. District Court for the Western District of Missouri found that the suit was both factually and legally reasonable under Missouri Law and remanded it to State Trial Court for further proceedings (4).

Taking this last case into consideration, liability could possibly follow from the failure to identify safe room(s) in a building. Following this logic, if a building does not have an adequate safe space/room, does that mean that in order to avoid liability during a catastrophic tornado, the owner of the building needs to install a safe room at considerable expense?

The answer is going to be maybe because it takes a case by case analysis to determine what a reasonable person would do. This is where Attorneys and Emergency Managers can collaborate to avoid liability and make the community safer. Together, Attorneys and both Private and Public Emergency Managers can assess whether the risk of a tornado hazard is so high that identification of safe rooms helps avoid liability.

Read Emily Younker’s full article here.

(1) Law.com, Duty, http://dictionary.law.com/Default.aspx?typed=duty&type=1, accessed on February 10, 2015.
(2) Law.com, Duty of Care, http://dictionary.law.com/Default.aspx?selected=599, accessed on February 10, 2015.
(3) Krik v. Wal-Mart Stores E., Inc., 2013 U.S. Dist. LEXIS 1771 at Page 5.
(4) Krik v. Wal-Mart Stores E., Inc., 2013 U.S. Dist. LEXIS 1771 at Pages 5-6.

Why Emergency Management Law?

Why Emergency Management Law?

For our first post I decided that we should really answer the question: “Why concern ourselves with the Emergency Management Law?” Won’t everyone just understand that it’s an emergency and everyone will just give us a “bye”? Well, the answer is no, no one will really just give you a “bye” because there was an emergency. Ignorance of the law is no excuse and there are plenty of people that would be happy to sue because they were injured from the government’s failure to plan or prepare properly for the emergency.

It’s relatively obvious that since law (i.e. Texas Disaster Act of 1975, National Response Framework, ect.) developed formal Emergency Management into what it is today, the profession frankly can’t exist without having at least a working relationship with it. However, as Professor William Nicholson has identified, the relationship between Emergency Managers and Attorneys in the United States is one often characterized as “mutual ignorance.”(1) Just knowing statutes isn’t enough though. As counsel can readily point out, though we have statutes as a guide, the precedent that relevant case law is just as important to understanding what Emergency Management can and cannot do.

For example, Texas statute allows for “reasonable force” to be used to make people who remain in an evacuated area to leave, but what is “reasonable force”? (2) That, opens a whole new line of questions and answers that honestly, Emergency Managers aren’t expected to know. Police may have a very good idea of what is “reasonable force”. But does  the “reasonable force” during an evacuation differ from every day police “reasonable force”? Why beat around the bush, just ask an Attorney! These are things that could expose city, county and state governments to exorbitant amounts of civil, and possibly criminal, liability and litigation costing the taxpayers a lot of their tax dollars. When Emergency Managers and Attorneys establish a healthy working relationship, these issues can be avoided altogether.

The whole goal of Emergency Management Law.com is to exchange information and ideas about how Emergency Managers and Attorneys can best work together to plan for emergencies, reduce risk, and improve the safety of our communities throughout the United States.

– Will

(1) William Charles Nicholson, Emergency Management and Law, 2014.
(2) Tex. Gov’t Code Ann. § 418.185(b) (West 2014).