Case Study of Legal Issues Involving Emergency Management and ...

Case Study of Legal Issues
Involving Emergency
Management and
Emergency Services
Partners In Emergency
Preparedness Conference 2012
Will Moorhead, J.D.

Liability
Framework
Application
of liability
Events that
create legal
issues
Situation analysis
Best practices

Possible Legal Action

Tort: Action that harms another
person, business, or group.
A person or group of people act,
or fail to act, without right and
thus harm another directly, or
indirectly.

Elements of Liability
Duty
Law, rule, regulation, standard of care
Breach
Cause
Injury
Act or omission
Connects breach with injury
Injury is required. Usually the
source of the conflict.

Standard of Care
What would a reasonable
person have done under
the same or similar
circumstances?

Practical
considerations
Identification of
hazards
Planning
Training
Exercise

Lessons Learned
Communications
Expenditures
Recognition
of Hazard

Proper Warning

Coordination Considerations
Who’s in charge
External and Internal
Contracts and MOUs

Security of the Finances
Fiscal Responsibility
Business Continuity
Limited Downtime
Fewer Losses
Efficient Spending

Alternate space
Cleanup
Contractors
Suppliers

Case Studies
Insufficient
Response
Incomplete Planning
Poorly Planned
Exercise
Class Action
Following Hurricane
Katrina

Two Families Sue For Wrongful Death In VA Tech Shootings
…for gross negligence and wrongful death.
Among those facing the lawsuits - Cho's estate, Virginia Tech,
counseling center, the local mental-health agency, several top
officials, and the college's president.
…although a double homicide was reported before the other
shooting took place, officials did not alarm the rest of the school
that there may be a murder suspect on campus.
…the mental health center that treated Cho could and should
have also prevented the tragedy.
The wrongful death suit is made up of ten separate counts and
asks $10 million in damages.

Virginia Tech Victims' Families Win $8M in Wrongful Death Lawsuit
Thu, Mar 15 2012
Families of two victims of the 2007 Virginia Tech shootings will receive $8 million in a
wrongful-death lawsuit, a jury ruled Wednesday.
The suit, brought by relatives of slain students Erin Peterson and Julia Pryde, alleged
Virginia Tech officials were negligent in taking too long to notify the campus that a gunman
was on the loose, WTKR-TV reports.
The Virginia Tech massacre began when two students were shot and killed in a dorm on
April 16, 2007. School officials did not alert the campus because they believed the shootings
were an isolated incident, Virginia Tech’s attorneys said.
Virginia Tech’s failure to warn anyone about a gunman on campus led to the killing of
Peterson and Pryde, their families’ wrongful-death lawsuit asserted.
But the school’s lawyers argued there was no evidence that a warning would have changed
what happened that day. No one could have reasonably foreseen Cho’s massacre, they
argued.
In a negligence case, a defendant is generally held liable only for harms that could have
been reasonably foreseen by the defendant’s actions, or failure to act. Whether a result was
foreseeable is a factor in establishing causation, one of the essential elements of
negligence.

Federal judge overturns $55,000 fine against Virginia Tech over campus alert in
2007 shooting March 30, 2012
In a ruling that became available Friday, Administrative Judge Ernest Canellos
dismissed a $55,000 fine against the Blacksburg school and determined that the
university officials’ actions on April 16, 2007, didn’t violate the Clery Act, which requires
schools to issue timely warnings of campus threats.
Canellos said he accepted that the university’s initial conclusion was reasonable, though
later proven wrong, that the first reported shootings of two students in the West Ambler
Johnston dormitory were a targeted act of violence stemming from a domestic argument
that didn’t present an ongoing safety threat.
Wendell Flinchum, the university’s police chief, had testified the conclusion was based
on factors such as the lack of forced entry into the dorm room and the victims’ clothing,
the woman in pajamas, the man in boxer shorts.
The Education Department “has the burden of proof in this proceeding and it has not
presented persuasive evidence that Virginia Tech’s conclusion was somehow
unreasonable,” his ruling said.

Class-Action Suit Filed After Katrina Hospital Deaths Settled for $25 Million
July 21, 2011
A New Orleans judge gave preliminary approval today to a settlement agreement
that would end a class-action lawsuit against one of the nation's largest publicly
owned health care companies. Under the terms of the deal, Tenet Healthcare
Corporation and a subsidiary will pay $25 million to patients and visitors trapped at
Memorial Medical Center after Hurricane Katrina.
The lawsuit against the hospital and its parent company, Tenet Healthcare
Corporation, alleged that they failed to prepare for and respond sufficiently to a
foreseeable disaster. Patients and others who took shelter at Memorial were
harmed, the plaintiffs claimed, because emergency plans for evacuation and
backup power were inadequate.
The hospital was plunged into darkness after its backup generators failed, and
helicopters hired by the corporation did not arrive until two days after the streets
around Memorial flooded. Maintenance staff at the hospital had warned prior to
Katrina that the hospital's electrical system was vulnerable to flooding, a known
hazard in the low-lying city.

OAKLAND SETTLES LAWSUIT WITH DISABILITY RIGHTS GROUP
January 22, 2010
City officials reached a settlement this week with the Berkeley-based Disability
Rights Advocates over a 2007 lawsuit that said the city was ill-prepared to help
disabled people in the event of a disaster such as an earthquake or firestorm.
The agreement requires Oakland to implement programs to specifically address the
needs of the city's disabled residents in its emergency preparedness plans. Both
sides said they are satisfied with the outcome.
Karla Gilbride, an attorney for Disability Rights Advocates, said that when the
lawsuit was filed, Oakland had an array of deficiencies in its emergency plans. She
credited the city for working with people with disabilities and finding ways to best
address their needs. "This is a victory for people with disabilities in Oakland," she
said. "Oakland has shown itself to be a leader in making sure people will be equally
safe "... and we're hoping other cities will follow Oakland's lead."
A similar lawsuit filed by Disability Rights Advocates and another organization is
pending against the city of Los Angeles. Gilbride said her organization is also
investigating whether other cities in California are unprepared to properly help
disabled people during emergencies.

ICU 'drill' -- with real gun -- was a lawsuit waiting to happen
Apr. 30, 2011
Let's send a cop undercover into a hospital's intensive care unit, waving
a real gun, and see how the staff reacts. But let's not tell anyone it's an
emergency preparedness drill. That's exactly what officials at St. Rose
Dominican Hospital-Siena Campus did on May 24.
On April 20, three ICU nurses and a respiratory therapist sued the
hospital, the off-duty cop, the Chief Operating Officer, and three
members of the Emergency Management Committee.
The lawsuit -- filed by three nurses and a respiratory therapist describes
how each one feared he or she was going to die that day after an angry
man entered the ICU and began waving a gun.
The defendants are accused of civil conspiracy, assault, false
imprisonment, intentional infliction of emotional distress, intentional
misrepresentation, fraud, and breach of contract.

Will Moorhead, J.D.
WillM@AllClearEMG.com
336-802-1800
www.AllClearEMG.com