Katrina and the Law: Liability

[Weird Harold]

One thing that has been bothering me about many of the news and anecdotal stories about Katrin is the way that legal issues -- for the purposes of THIS thread, liability issues -- caused some tragic decisions.

One example, but far from the only example, is the question of using the New Orleans School district's busses to evacuate before or after the hurricane hit.

Various excuses have been given for why they weren't used, but the two points that are relevant are:

1: We didn't have drivers for them.

2: The city's liability insurance wouldn't cover any accidents.

I'm sure that better legal minds than mine were advising whoever was making the decisions, but I should think that a "state of emergency" or if necessary a declaration of Martial Law would suspend some of the liability concerns.

I'm thinking of the example of Oregon's "Good Samaritan Law" as it existed in the 1960's. That law required motorists to "stop and render what assistance they can" at an accidient. It explicity excluded any claims of liability or malpractice being pursued against anyone acting under the requirements of the law.

Driving a bus isn't rocket science although in normal circumstances it does require a special endorsement on the driver's license. I think that drivers could have been found and the buses used if not for the concerns about liability and lawsuits.

The risk of accidents would be higher with inexperience drivers but wouldn't that have been an acceptable risk in light of the need to evacuate people?

The buses aren't the only things concern over liability kept from happening -- part of the delay in ordering a mandatory evacuation was beause of liability issues and the fact taht there is still no forceable evacuations going on has been excused as a liability issue.

I'm not sure just how, or which, laws should be changed to keep local governments from worrying more about liability lawsuits than saving lives, but I think there does have to be some legal changes to enable things to get done in emergencies.

There are many other legal considerations involve in the events of the last two weeks, but I'd like to keep this thread focussed on the liability issue. We can start other threads for the constitutional, posse comitatus, and other legal issues.

 

[Huckleman2000]

...I'm not sure just how, or which, laws should be changed to keep local governments from worrying more about liability lawsuits than saving lives, but I think there does have to be some legal changes to enable things to get done in emergencies.

There are many other legal considerations involve in the events of the last two weeks, but I'd like to keep this thread focussed on the liability issue. We can start other threads for the constitutional, posse comitatus, and other legal issues.

This is a complete and total red herring, WH. Just another in your continuing schlep of the Bush administration's water. I don't know where you dredged up this total bastardization of "liability" issues in this fiasco, but jumping on the Katrina disaster to try and weaken insurance industry legislation is beneath contempt. Here, from MediaMatters.com, is an analysis of the school bus canard:

On September 11, ABC host George Stephanopoulos repeated a falsehood that had reverberated through the right-wing media the preceding week -- that "there were 2,000 buses under water" that New Orleans Mayor C. Ray Nagin could have used to evacuate his city before Hurricane Katrina's arrival. The claim appears to have originated in a September 6 column by Washington Times editor-in-chief Wesley Pruden, who inaccurately charged that, although Nagin ordered a mandatory evacuation before the hurricane's arrival, he "kept the city's 2,000 school buses parked and locked in neat rows when there was still time to take the refugees to higher ground." Conservative websites, including the Power Line and Little Green Footballs weblogs, quickly linked to Pruden's column.

But Pruden dramatically overstated the number of New Orleans school buses. As of 2003, the most recent year for which data appears to be available, the Orleans Parish school district, which operates New Orleans' public schools, owned only 324 school buses. In addition, a Louisiana Department of Transportation and Development profile of the New Orleans Regional Transit Authority (RTA), last updated May 5, notes that RTA owned 364 public buses, bringing the total of the city's public transit and school buses to fewer than 700 (assuming the fleet of school buses has not been dramatically increased since 2003), far fewer than the 2,000 Pruden claimed. Even so, Pruden's claim was repeated that evening on Fox News' Hannity & Colmes by co-host Sean Hannity, who insisted, "Two thousand buses sat; 2,000 school buses." The falsehood was echoed the next day by Fox news political analyst and former Speaker of the House Newt Gingrich (R-GA), who baselessly suggested that the city owned more than enough buses to help every poor person leave the city. And In a September 11 Pittsburgh Post-Gazette column, national security writer Jack Kelly asked, "[W]hy weren't the roughly 2,000 municipal and school buses in New Orleans utilized to take people out of the city before Katrina struck?"

During a roundtable discussion on the September 11 broadcast of ABC's This Week with George Stephanopoulos, which included Gingrich, Stephanopoulos repeated Pruden's faulty figure. After Gingrich asserted that "it's the mayor who fails to use the city buses to move the poor out of New Orleans," Stephanopoulos responded, "He says that was never part of the plan, but you're right, there were 2,000 buses under water." Gingrich replied, "That's right."

In fact, The New York Times reported on September 4 that Louisiana emergency planners believed it would take as many as 2,000 buses "to evacuate an estimated 100,000 elderly and disabled people" in the event of a catastrophic hurricane like Katrina. But, The New York Times wrote, this was "far more than New Orleans possessed."

Pruden's claim that the city possessed 2,000 school buses that could have been used for a pre-storm evacuation appears to be an exaggeration of a September 1 Associated Press photograph of school buses parked in a flooded lot in New Orleans. The photograph was widely reported on conservative websites, including the Media Research Center's NewsBusters weblog, the Instapundit weblog, and Michelle Malkin's weblog. A September 6 MSNBC.com article that described the scene in the AP photograph noted, "Some 200 New Orleans school buses sit underwater in a parking lot, unused. That's enough to have evacuated at least 13,000 people."

Apparently, those school buses constituted the majority of New Orleans' school bus fleet. According to a September 5, 2003, article in the New Orleans Times-Picayune, "The [Orleans Parish school] district owns 324 buses but 70 are broken down." A 2003 document posted on the Louisiana Department of Education's website confirms that Orleans Parish used 324 "board owned" school buses and no "contractor owned" school buses.

On the September 7 edition of Hannity & Colmes, Gingrich echoed Pruden's inaccurate claim, falsely asserting that the city possessed "more than enough buses to, in a methodical, orderly way, help every poor person leave the city."

But Gingrich's claim has no basis in fact. While estimates of the number of residents stranded in New Orleans following the storm vary, New Orleans officials have suggested that 80 percent of the city's residents evacuated before the hurricane hit. That leaves roughly 97,000 residents who remained in New Orleans.

New Orleans' combined fleet of public transit and school buses would not have had nearly enough capacity to evacuate all of those who remained in the city. A July 8 Times-Picayune article, titled "RTA buses would be used for evacuation; But plan still falls far short of needs," pointed out that the RTA owned 364 public buses. "Even if the entire fleet was used," the Times-Picayune noted, "the buses would carry only about 22,000 people out of the city -- far short of the 134,000 people estimated to be without cars in a recent University of New Orleans study." Even the addition of the full school bus fleet would have been far from sufficient to transport the remaining residents.

Moreover, The New York Times noted that a number of New Orleans buses were in use as the hurricane approached: "But Chester Wilmot, an L.S.U. [Louisiana State University] civil engineering professor who studies evacuation plans, said the city successfully improvised. He said witnesses described seeing city buses shuttle residents to the Superdome before Hurricane Katrina struck."

 

[Weird Harold]

This is a complete and total red herring, WH. Just another in your continuing schlep of the Bush administration's water. I don't know where you dredged up this total bastardization of "liability" issues in this fiasco, but jumping on the Katrina disaster to try and weaken insurance industry legislation is beneath contempt. Here, from MediaMatters.com, is an analysis of the school bus canard:

from page 4 of the nine page article at: http://www.msnbc.msn.com/id/9286534

By late Sunday, as millions of people in the Gulf region sought a safe place to hunker down, hundreds of shelter beds upstate lay empty. "We could have taken a lot more," said Joe Becker, senior vice president for preparedness and response at the Red Cross. "The problem was transportation." The New Orleans plan for public buses that would take people upstate was never implemented, and while many residents did manage to get out of town -- about 80 percent, the mayor said -- tens of thousands did not.

"Once a mandatory evacuation was ordered, those buses should have been leaving those parishes with those people on them," said Chip Johnson, chief of emergency operations in Avoyelles Parish, who helped put together the plan. In Avoyelles alone, there was room for at least 200 or 300 more on Sunday night before the storm, and more shelters could have opened if necessary. "I don't know why that didn't happen."

The article you cited is the first time I've seen any allegation that there were "2,000 busses." The highest estimate I've seen is 400 RTA busses and 500 school busses -- the RTA busses were used to move people to the Superdome but the school busses weren't used at all.

There are several MSM articles, and bloggers Katrina timelines that quote Mayor Nagin as saying the school busses weren't used because of a lack of drivers and the city's liability concerns -- including the nine page Washington Post timeline I linked above and the NY Times equivalent.

I don't particularly care about "insurance legislation" whether the necessary changes protect insurance companies form having to pay out or force them to pay more. I am concerned that "liability concerns" hampered many decisions that ultimately cost lives.

There must be some changes that can be made to protect government officials and individuals acting in "good faith" under emergency conditions from having to worry about whether they'll wind up in court for doing what needed to be done.

It's odd that you accuse me of "jumping on the Katrina disaster to try and weaken insurance industry legislation" when most of the changes I think would be appropriate would tend to protect insurance companies more than current legislation already does.

The people I'd like to see muzzled are the ambulance chasing lawyers who have intimidated people into thinking about possible lawsuits before they think about helping others.

 

[Huckleman2000]

...It's odd that you accuse me of "jumping on the Katrina disaster to try and weaken insurance industry legislation" when most of the changes I think would be appropriate would tend to protect insurance companies more than current legislation already does.

The people I'd like to see muzzled are the ambulance chasing lawyers who have intimidated people into thinking about possible lawsuits before they think about helping others.

I meant "regulation", not "legislation".

If people in charge really did blame insurance liability issues, I would consider that a pretty lame excuse.

However, your article citing room for "at least 200 or 300 more" in one upstate shelter hardly sounds like a solution for the tens of thousands of people stranded at the SuperDome and Convention Center. What does that amount to, about 10 busloads or so? Maybe one percent of those people, and a smaller fraction of the much larger number of people in the affected Parishes.

Much larger than insurance liability, I would think, would be the very real liability of not having anywhere to transport the evacuees to. Or the liability of not being able to protect the (mostly female) school bus drivers from the lawlessness that followed the flooding.

In the universe of officials who didn't perform very well in this disaster, finding fault with hypothetical trial lawyers smacks of using the circumstances to further an agenda with almost nothing to do with the causes or solutions to the poor disaster response.

 

[Weird Harold]

However, your article citing room for "at least 200 or 300 more" in one upstate shelter hardly sounds like a solution for the tens of thousands of people stranded at the SuperDome and Convention Center. What does that amount to, about 10 busloads or so? Maybe one percent of those people, and a smaller fraction of the much larger number of people in the affected Parishes.

That quote was from one of many shelters the evacuation plan should have started the city been busing people to. Just considering the most common estimate of the school busses that weren't used, 500 * 50 passengers is 25,000 people that wouldn't have been in New Orleans if only one trip was possible -- the plan called for multiple trips.

Much larger than insurance liability, I would think, would be the very real liability of not having anywhere to transport the evacuees to. Or the liability of not being able to protect the (mostly female) school bus drivers from the lawlessness that followed the flooding.

Why do you keep referring to "insurance liability?"

I started the thread because of the "real liability" issues that people explaining why things didn't happen -- some citing insurance coverage and some not.

Should an emergency manager have to worry about whether doing his job to the best of his ability leaves him open to lawsuits? Whether he/she or the city has liability insurance that might cover him won't make any difference to whether he's sued or not.

Pleading liability concerns is most certainly a weak excuse for not doing more and FEMA and DHS have made their share of claims that they couldn't do something because of liability concerns.

The question I'm asking is, "Is there a way to remove that as an excuse so people won't have such a weak excuse to fall back on?"

Under normal conditions, a city that turned a school bus full of people over to someone without a school bus endorsement on their license should be fully liable for anything bad that happens or even just held liable for putting the passengers at risk.

Should the same standard of liability hold for an emergency situation? Do you adhere to the "red tape" that requires documentation or do you run the bus around the parking lot once to see if a volunteer driver can start and stop the bus and keep it pointed in roughly the right direction?

Whether you call it "liability concerns" or "red tape" the result is the same -- people who could be evacuated stay in the city and are subject to the lawlessness.

That article I referenced mentions that the first bus to arrive at the astrodome was a school bus driven by an "enterprising 20 year old" who commandeered it. I don't think he got a ticket for driving a school bus without the proper endorsement, but it wouldn't surprise me. Then again, the government can claim he stole the bus and they aren't liable for his actions; it would be different if he had volunteered to drive a bus and the city gve him permission. They would be responsible under the current laws -- but should they be under a state of emergency?

 

[Colleen Thomas]

I think you have a good point WH. Actions taken during a state of Emergency should have some limited immunity from being sued on the part of officals. Without it, you could face a spate of spurious lawsuits from almost any action.

At the same time, the protections would have to be contingent on you acting in a prudent manner. When you provide immunity to litigation you severely hamper the ability of a wronged party to seek redress. Considering some of the decisions made by New orleans's Mayor, I feel pretty stongly he was at the very least criminally negligent in this disaster. Folks should be able to sue him for his bungling.

If city officals order me to a certain evacuation point and I arrive to find they haven't arranged for transportation out, food, water, basic medicine, fuel, generators or security and they then refuse to let me leave, I don't think good faith legislation should protect them from that level of incomprehensible incompetance. At the same time, if the city commandeers anything that will move and I haven't another way out, I don't think i should be able to sue if the school bus I happened to end up on has an accidnet.

It would seem to me the legislation limiting liability would have to be very carefully crafted to protect against baseless lawsuits, but allow those with real injury to proceed.

 

[elsol]

I watched the interview with the guy in charge of the 9/11 fund... and I came away with 'Someone is going to sue someone!'

It's gotten to that point.

So while it is a weak concern, I have to say it WOULD give me pause if I have to make the call.

I know the insurance companies would say 'Oh... you got sued. We don't have to pay because Joe-Blow who was driving the bus wasn't licensed... sell your house.'


Sincerely,
ElSol

 

[Recidiva]

I'm in Florida and I've been through a few hurricanes, and so I can offer this perspective. On the build up to a hurricane, people are just watching. Things have been known to blow off course, not be as bad as you think... My husband and I didn't evacuate for Charley and we were screwed. Tree on the house and everything. But if we had left, we probably would have lost EVERYTHING to possible looting, electrical fires...we also had pets and we didn't have enough money to take everything and care for everything. We chose to stay, and we continued to stay through the next three hurricanes that summer also coming our way. It was awful. We were lucky. We risked our lives and we survived, though the legal and financial nightmares that followed were awful and still are. Credit rating destroyed, job lost, foreclosure looming due to mortgage companies losing paperwork, insurance companies doing insane and cruel things.

Say my job that day was as a bus driver...is there a clause in my contract that states I have to do my job in case of an Act of God or am I going to ditch my job to care for my family and myself? No question. Ditch my job. And I'm a good person. But in this case, the concept of "for the group" gets chopped down into smaller and smaller bits. Some are too big to carry in the face of the threat bearing down on you.

People's priorities completely change. People in tragedies like this have to make choices and jettison parts of their life and wonder if they'll have them to come back to. In the end, though, most people who can leave do so because they can replace what they left behind. Those who stay probably can't and choose to put their own lives at risk to care for it. And then they are faced with the reality that the bottle of water they have in their hand in public might mean you're going to die for it. So people are even drinking behind closed, barricaded doors if they only have enough water for one.

Civilized law can't cover lots of this, it's the law of the jungle. The people who get hurt the most are the weak, the compassionate and the poor. Everyone else has the resources, power and lack of conflict to evacuate. Those concerned only with self preservation and they get out first. They didn't have to wrestle with any other concerns. There are good reasons for going, there are good reasons for staying behind.

 

[scheherazade_79]

I have a better solution - sue God If he can't turn up to the hearing, I'm sure the Vatican would be able to send along a representative.

 

[R. Richard]

That article I referenced mentions that the first bus to arrive at the astrodome was a school bus driven by an "enterprising 20 year old" who commandeered it. I don't think he got a ticket for driving a school bus without the proper endorsement, but it wouldn't surprise me. Then again, the government can claim he stole the bus and they aren't liable for his actions; it would be different if he had volunteered to drive a bus and the city gve him permission. They would be responsible under the current laws -- but should they be under a state of emergency?

The enterprising 20-year-old [sometimes cited as an 18-year-old] was a black youth named Jabbar Gibson. He didn't commandeer the bus, he stole it. Jabbar Gibson had never before driven a school bus. He then picked up people who wanted out of New Orleans as he went. The people in the bus then pooled what little money they had and bought fuel for the bus so that they would get to Houston. They also bought diapers for the babies aboard the bus. Jabbar drove the bus some 350 miles to Houston and the Astrodome where there was to be shelter for Katrina refugees.

The police at the Astrodome at first would not let the passengers in Jabbar's bus into the Astrodome, because they were not sure that they were Katrina refugees. Fortunately some giant brain pointed out that people arriving at the Astrodome in a New Orleans school bus were very probably Katrina refugees. The police then did allow the people inside the Astrodome. They are still talking about arresting Jabbar Gibson for theft of the school bus.

The mayor of New Orleans did not want to use the school and city busses because he "couldn't ask terrified municipal employees to drive busses in emergency conditions." What the mayor of New Orleans demanded was that every Greyhound bus in the USA be driven to New Orleans and used to transport refugees out of the city. The mayor was then asked who would provide crowd control if Greyhound busses were provided. No answer was forthcoming.

 

[Weird Harold]

I think you have a good point WH. Actions taken during a state of Emergency should have some limited immunity from being sued on the part of officals. Without it, you could face a spate of spurious lawsuits from almost any action.

...
It would seem to me the legislation limiting liability would have to be very carefully crafted to protect against baseless lawsuits, but allow those with real injury to proceed.

I think you've defined the problem well. Legislation would have to be carefully crafted to prevent abuse as well. I can easily see people making the mistake that limiting liability means they have no liability for their actions.

I'm not sure how the rules should change, but the "red-tape" and liability issues need to be removed as a barrier to action when it's needed. Perhaps shifting the liability to disaster response planners so that the planners and lawyers can make decisions when lives aren't at immediate risk about finding volunteer drivers when licensed drivers aren't available or commandeering transport that would normally not be appropriate for transporting people -- i.e boxcars, cargo ships and semis.

"Good Faith" has proven to be a nebulous concept, whichis why I referenced Oregon's Good Samaritan law in the past tense -- I have no idea what it is like now, except that the liability protections no longer apply to anyone except doctors and nurses if the law still even exists.

R.Richard: "He didn't commandeer the bus, he stole it. Jabbar Gibson had never before driven a school bus."

Thanks for the aditional information on that part of the story.

The distinction between commandering and stealing is part of the problem I'm talking about. If he'd taken the bus and not used it to evacuate others, I'd class it as stealing, but the law doesn't make any distinction for a private individual between stealing and comandeering -- the whole point of this thread is that the law should make a distinction. If they do arrest him for theft I'd hope the first judge to see the case would rip it up because of "extenuating circumstances."

 

[Huckleman2000]

Again, I'm not arguing for more frivolous lawsuits. It's just that the concern seems horribly misplaced.

Surely you can't be arguing that the solution to evacuation of major disaster areas should be found in vigilante school bus drivers! Of course! We should suspend all civil laws and rely on the innate ability of the weak, infirm, and destitute to use whatever means they can to save themselves without fear of any recrimination.

It's easy to point to school buses and say, "The mayor should have used those!", but there are other logistical issues besides fear of lawsuits that stood in the way. Sure, it's easy to blame the lawyers; waiving legal liability is not going to solve the problem of evacuation.

There's a well-publicized story of two military helicopter pilots that disobeyed orders to go and rescue people. Is the problem that they should have had waivers to act on their own initiative under circumstances of their own discretion? do you think the military would be more efficient without having to follow rules of protocol and command?

For someone who has been so vehement in defending the military and federal government's freedom to screw up, or plead Murphy's Law when things don't go according to plan, you seem awfully quick to abandon laws and regulations that provide a means of redress for innocent people victimized by willful malfeasance.

 

[R. Richard]

Surely you can't be arguing that the solution to evacuation of major disaster areas should be found in vigilante school bus drivers! Of course! We should suspend all civil laws and rely on the innate ability of the weak, infirm, and destitute to use whatever means they can to save themselves without fear of any recrimination.

It's easy to point to school buses and say, "The mayor should have used those!", but there are other logistical issues besides fear of lawsuits that stood in the way. Sure, it's easy to blame the lawyers; waiving legal liability is not going to solve the problem of evacuation.

I am telling you that, if I found myself in the same situation as Jabbar Gibson, I would have tried exactly the same solution, hopefully with as good a result.

Please tell me what the "other logistical issues" were. A bus breaking down? Any bus can break down, including one with a Mayoral order and a professional bus driver; I would still make the try. Someone actually stealing a school bus? Actually, there is a ready market for stolen school busses and the Literotica people wiould be very happy if you would tell them were, I forget. Where to get fuel and what kind of fuel? The information as to what kind is written on the bus, near the filler. Where to get fuel information can be obtained from almost any gas station or police officer. Proper selection of fellow passengers? When you are fleeing a hurricane, you tend to flock with anyone who is headed the same way, not just birds of a feather. If one of the passengers is a robber, that can happen even with a Mayoral order and a professional driver.

The Mayor of New Orleans wanted to use busses to evacuate the city. He just wanted to use Greyhound busses, not city and school busses. It was too dangerous to try to use New Orleans bus drivers to drive the busses. However, it was OK to use out of town drivers with no local knowledge and no funds to buy fuel. [Oh yes, the Interstate Coomerce people limit the number of hours a driver can drive before he is legally obligated to stop and rest for legally mandated periods. It would have take days, maybe a week to get some of the Greyhounds to New Orleans.]

 

[Weird Harold]

Surely you can't be arguing that the solution to evacuation of major disaster areas should be found in vigilante school bus drivers! Of course! We should suspend all civil laws and rely on the innate ability of the weak, infirm, and destitute to use whatever means they can to save themselves without fear of any recrimination.

It's easy to point to school buses and say, "The mayor should have used those!", but there are other logistical issues besides fear of lawsuits that stood in the way. Sure, it's easy to blame the lawyers; waiving legal liability is not going to solve the problem of evacuation.

You're very good at putting words in my mouth. There is a difference between "vigilante bus drivers" and the ability to utilize volunteer bus drivers who may not have the proper license to drive a bus in non-emergnency conditions.

I'm not talking about waiving legal liability but about modifying legal liability rules in a state of emergency. New Orleans planned to use those busses and didn't -- in part because of liability issues.

There's a well-publicized story of two military helicopter pilots that disobeyed orders to go and rescue people. Is the problem that they should have had waivers to act on their own initiative under circumstances of their own discretion? do you think the military would be more efficient without having to follow rules of protocol and command?

No, the military would NOT be more efficient without following the rules of protocol and command. But then the military isn't as bound by liability issues when something needs to be done either -- especially in "emergency" situations.

I don't know the complete story of the helicopters that diverted from their supply missions to resue operations -- other than the fact that they eventually received approval of the diversion but were verbally reprimanded after the fact for not keeping their commander informed of what they were up to in a timely manner. What they did was within the protocols and command limitations of the Military for a unit out of communications with it's command authority.

For someone who has been so vehement in defending the military and federal government's freedom to screw up, or plead Murphy's Law when things don't go according to plan, you seem awfully quick to abandon laws and regulations that provide a means of redress for innocent people victimized by willful malfeasance.

Again you're imputing intentions that aren't even close to what I'm suggesting -- there should be NO protection against "willful malfeasance."

What I'm trying to say is that in an emergency situation, the question should NOT be "is there anyone with the proper credentials?" It should be "is there anyone who can do the job?"

The issue goes far beyond the problem of bus drivers: people tryng to help were turned away because they didn't have immunization records on them and their assurances that their immunizations were up to date weren't sufficient. That's a "liability issue" that hampered relief efforts.

People trying were sent to 48 hours of orientation on sexual harrassment and sensitivity training before bein allowed to go do something. That's a "liability issue" that delayed action.

There are hundreds of news stories on the web titled "Red tape keeps XXXXX from helping." many of those are the result of liability issues.

A shipment of german military rations were allegedly blocked or delayed because of normal regulations aimed at "mad cow disease" -- if true, that's a "Liability issue" that blocked or delayed a couple of tons of rations that are safe enough for the german military to routinely issue to it's troops, but not safe enough for starving people.

The media is outraged at the way "red tape" is blocking or delaying relief efforts and supplies -- and quite rightly so, IMHO. I see "fear of lawsuits" behind the "red tape" in many cases and think the standards for liability lawsuits should be relaxed in emergency situations.

Just as the USAF has maintenance standards that apply to ABDR (Aircraft Battle Damage Repair) and a completely different set of maintenance standards that apply to normal peacetime maintenance, so I believe that there should be different rules and standards for the actions taken in response to a state of emergency than there are in non-emergency day-to-day operations.

Repairs that would get a technician court-martialed in peacetime are actually encouraged in an ABDR scenario -- the standard changes from "is it by the book" to "does it work." The law in the civilian world doesn't make that kind of shift in times of emergency, but I think it should.

The response to Katrina would have been much better than it was, IMHO, if civil law did recognise a different standard of liability in emergency conditions.

 

[dr_mabeuse]

I'm pretty much of a goose-stepping, flag-waving liberal, but I'd still like someone to tell me why tort reform is such a bad idea.

Personal injury lawyers here advertise on TV: if you're hurt, come on in and let's see if we can't sue somebody. No money down, contingency only. You win, we take a third. You lose, and no skin off your back.

You have to be crazy not to sue.

 

[Weird Harold]

I'm pretty much of a goose-stepping, flag-waving liberal, but I'd still like someone to tell me why tort reform is such a bad idea.

Personal injury lawyers here advertise on TV: if you're hurt, come on in and let's see if we can't sue somebody. No money down, contingency only. You win, we take a third. You lose, and no skin off your back.

You have to be crazy not to sue.

Good point Doc.

It's actualy ironic because in this case, I'm not really proposing Tort Reform in general. Some of the liability issues that interfered with the response to Katrina are NOT what I'd consider "frivilous lawsuit" issues under normal, non-emergency conditions.

Still, just as somone in a disaster won't cling to the same standard of dining excellence they would normally demand, the government -- and lawyers -- should isn't be overly concerned about the expiration date on a donated can of Ravioli; expiration dates are extremely conservative in relation to the reality of whether the contents are safe to eat or not and the reality of edibility and not the arbitrary date should be the concern.

 

[cantdog]

That quote was from one of many shelters the evacuation plan should have started the city been busing people to. Just considering the most common estimate of the school busses that weren't used, 500 * 50 passengers is 25,000 people that wouldn't have been in New Orleans if only one trip was possible -- the plan called for multiple trips.



Why do you keep referring to "insurance liability?"

I started the thread because of the "real liability" issues that people explaining why things didn't happen -- some citing insurance coverage and some not.

Should an emergency manager have to worry about whether doing his job to the best of his ability leaves him open to lawsuits? Whether he/she or the city has liability insurance that might cover him won't make any difference to whether he's sued or not.

Pleading liability concerns is most certainly a weak excuse for not doing more and FEMA and DHS have made their share of claims that they couldn't do something because of liability concerns.

The question I'm asking is, "Is there a way to remove that as an excuse so people won't have such a weak excuse to fall back on?"

Under normal conditions, a city that turned a school bus full of people over to someone without a school bus endorsement on their license should be fully liable for anything bad that happens or even just held liable for putting the passengers at risk.

Should the same standard of liability hold for an emergency situation? Do you adhere to the "red tape" that requires documentation or do you run the bus around the parking lot once to see if a volunteer driver can start and stop the bus and keep it pointed in roughly the right direction?

Whether you call it "liability concerns" or "red tape" the result is the same -- people who could be evacuated stay in the city and are subject to the lawlessness.

That article I referenced mentions that the first bus to arrive at the astrodome was a school bus driven by an "enterprising 20 year old" who commandeered it. I don't think he got a ticket for driving a school bus without the proper endorsement, but it wouldn't surprise me. Then again, the government can claim he stole the bus and they aren't liable for his actions; it would be different if he had volunteered to drive a bus and the city gve him permission. They would be responsible under the current laws -- but should they be under a state of emergency?

How much of an emergency? Personal liability for malfeasance and negligence is waived in the Maine Good Samaritan statute, but the Samaritan can still be sued for gross and aggravated negligence, abandonment, and malfeasance. Insurance is a gamble by the buyer and the company, and the contractual arrangements of any insurances still stand.

The Good Sam law applies at all times. It does not wait for any general emergency. Local and small emergencies will do. It protects a bystander or relative or someone else who drives the rig into town because otherwise it wouldn't happen, for example. Martial law supplants ordinary legal structures with another structure. A defendant in any suit who could show he committed abandonment under authority during martial law would defeat the suit. Not, if not, I bet, though.

I think on the whole a Good Sam law is an excellent idea. I daresay there are conditions in the concept of states of emergency or disaster declarations which bear on tort liability, but i do not know what they are. Nor do I care. The best defense against any suit is to have done the right thing. If it violates policy, your rulebound employer will not prevail against you if you did the right thing. If you are liable (and people are, actually, quite a lot), the decision will still favor you if you did the right thing.

Policy to do nothing without licensed people even if folks don't get rescued is an example. It probably did not happen in New Orleans, it's too obviously hooey. But it did happen at a construction site I worked at one summer. The unlicensed man violated the licensing statute by operating the machine and violated company rules designed to limit liability as well, but he could neither be disciplined nor convicted, because the subsequent hearings applied the usual standard. People *wanted* to find some way to save him, because he'd done the right thing.

Firemen have to have a working acquaintance of tort liability if they work ambulance. I carried my own insurance in addition to the city's coverage.

 

[Weird Harold]

How much of an emergency? Personal liability for malfeasance and negligence is waived in the Maine Good Samaritan statute, but the Samaritan can still be sued for gross and aggravated negligence, abandonment, and malfeasance. Insurance is a gamble by the buyer and the company, and the contractual arrangements of any insurances still stand.

The Good Sam law applies at all times. It does not wait for any general emergency. Local and small emergencies will do. It protects a bystander or relative or someone else who drives the rig into town because otherwise it wouldn't happen, for example. Martial law supplants ordinary legal structures with another structure. A defendant in any suit who could show he committed abandonment under authority during martial law would defeat the suit. Not, if not, I bet, though.

I referenced Oregon's 1960's version of the Good Samaritan law in the first post as an example of something that didn't seem to apply to the situation in New Orleans. However, Oregon and Maine's Good Samaritan laws don't apply in Lousiana -- any idea whether Lousiana has a Good Samaritan Law and/or if it applies to government actions? (IIRC, Oregon's good samaritan law doesn't apply to government agencies or representatives because they're covered under another statute.)

Martial Law does change the rules, but I'm not sure exactly how they change or what changes go with which level of martial law. Also, martial law is necessarily limited in scope and many of the red tape and liability issues happened outside of the disaster area where martial law could be justified.

I don't know if martial law has ever actually been declared in New Orleans. I know Mayor Nagin requested martial law at one point and several days later neither a state or federal martial law declaration had been made -- that was as of a week or so ago and I haven't seen any mention of martial law since then.

Declaring Martial Law -- and actually acting according to the changes martial law invokes -- is part of the solution, but a nation-wide declaration of martial law isn't practical or prudent. The new disaster classification, "Incident of National Signifigance" was suposed to resolve some of the issues I'm talking about, but it seems to have been inadequate.

Part of the inadeqaucy seems to be rooted in a lack of education and compliance with what is supposed to happen under a declared "Incident of National Signifigance" but part of it is simply inherent in creating a bureacracy and expecting it to cut red tape instead of creating red tape.

 

[cantdog]

Yeah. Once we became qualified, attained a level of licensure as an EMT, the Good Samaritan law no longer applied to us, because we were held to a different standard. Advanced first aid level, though, government or not, we were still protected, strangely. Before paramedics were invented, most ambulance services were first-aid-trained people working out of funeral homes (a hearse is a great ambulance vehicle!), or volunteer squads who saw a real emergency maybe once in four months.

I know you brought it up as a side issue, but discussions of the situation ought eventually to aim at solutions for the future. I think such a law ought to be part of that.

In a general scene of chaos and destruction, people give themselves license. Some folks turn into comic book heroes and Swing Into Action. They generally come to regret it later, as their reckless swashbuckling is evaluated in a calm hearing room, away from the urgent, charged atmosphere of an emergency. In such rooms, the comic book heroes find that judgement is still expected of people, even in an emergency. The same for those who turn into rabbits and run and hide at the wrong time.

Authority is the crux in disaster planning. Who is in charge? Personalities cannot be allowed to determine that. For example, the ranking fire officer at a scene is ordinarily the man in charge. Not the police, as most folks imagine.

I figure that a governor requests a federal declaration that an area is a disaster area precisely to override ordinary local authority. None of that will change anything on the ground if local authorities aren't told about it. Training for police and fire and such people ought to include training about what changes occur in authority structures during such times.

I have been in the room when decisions or this kind were made. The tendency in the sort of state-level disaster planning I was involved in was to keep the ordinary structures intact if possible. The ranking local fire commander was left in charge, because it was the ordinary way things were done, as much as for any other reason.

As I understand it, before there was a Homeland Security, the Coast Guard was acting only under the auspices of local authority. Ultimate responsibility remained at the local level. FEMA is gutted a bit, but I bet Homeland Security has been given sweeping powers to override local authority. How necessary is that?

 

[Weird Harold]

I know you brought it up as a side issue, but discussions of the situation ought eventually to aim at solutions for the future. I think such a law ought to be part of that.

That is really why I started this thread: to look at what changes in the law should be considered, but with the emphasis on liability/red tape issues because a discussion of all the legal ramifications is simply too broad for one thread.

Authority is the crux in disaster planning. Who is in charge? Personalities cannot be allowed to determine that. For example, the ranking fire officer at a scene is ordinarily the man in charge. Not the police, as most folks imagine.

I figure that a governor requests a federal declaration that an area is a disaster area precisely to override ordinary local authority. None of that will change anything on the ground if local authorities aren't told about it. Training for police and fire and such people ought to include training about what changes occur in authority structures during such times.

The changes in authority is one of those "other legal issues" but the purpose and nature of the various levels of official declaration and how each changes the "rules of engagement" (in military terms) is relevant to a discussion of what government can or cannot do in the way of cutting red tape.

In the case of Katrina, all three levels of "Disaster" declarations were used in roughly the proper sequence. The changes in legal status apparently had no effect on the actions or sense of urgency at many levels, but most apparent at the Louisiana state level.

The first two levels -- State of Emergency and Disaster -- don't really do anything except change the level of federal assistance available to local authorities. Only the newest and untested level, Incident of National Signifigance, changes the lines of authority and responsibility. One thing that is very clear is that nobody at any level had an understanding of how that level was supposed to work.

I have been in the room when decisions or this kind were made. The tendency in the sort of state-level disaster planning I was involved in was to keep the ordinary structures intact if possible. The ranking local fire commander was left in charge, because it was the ordinary way things were done, as much as for any other reason.

As I understand it, before there was a Homeland Security, the Coast Guard was acting only under the auspices of local authority. Ultimate responsibility remained at the local level. FEMA is gutted a bit, but I bet Homeland Security has been given sweeping powers to override local authority. How necessary is that?

I too have spent an hour or two over the years in discussions and critiques of contingency plans -- in my case military plans that mostly dealt with war-time scenerios or mobility deployments but a few that dealt with response to natural disasters.

Like your experience, most of the planning relied on leaving detailed planning to the smallest unit possible -- Command level plans say "unit A is responsible for doing this and Unit B is repsonsible for doing that." It's up to Units A & B to develop the detailed plans for how they're going to accomplish their missions.

From what I've read of the NRP (from the DHS website) the Federal Response conforms to the pattern of leaving the details to the lowest possible (local) level -- in fact the summary of the NRP emphasizes that aspect of the plan.

Unlike the military plans that form my basis for comparison, there doesn't seem to be any consideration in the NRP given to what to do when the main plan goes awry -- i.e who takes up the slack when Unit A or B is destroyed and unable to enact their part of the plan.

A declaration of an "Incident of National Signifigance" does indeed give DHS/FEMA the authority to override local authorities, but the problem is that it doesn't give them the "power" to do so. The legislation doesn't have any teeth and relies entirely on local officials cooperating by releasing command of local assets to DHS/FEMA control -- or at least placing themselves under federal orders.

I'm not sure just exacty what each level of declaration enables or inhibits. The problem is that the people directly affected don't seem to know either.

It seems to me that whatever level and classification of the "state of emergency" that enabled Mayor Nagin to order a mandatory evacuation should also enable him to commandeer whatever assets were physically in his area of responsibility without worryng about whose insurance company woud cover his use of commandeered assets.

I have no idea whether the legal situation actually would allow commandeering assets, but it sems to me that Mayor Nagin either believed it didn't allow him to commandeer assets or was reluctant to to use all of the powers available to him. Concerns about the eventual cost -- whether through direct reimbursement requirements for commandeered assets or through eventual insurance claims and lawsuits -- do seem to have had a large part in his decison making process.

The proverb, "penny wise and pound foolish" comes to mind -- New Orleans was going to be bankrupt because of Katrina no matter whether his decisions added a million or two the city's potential debt or not.