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.