Emergency Response Liability And Public Policy In The Twenty-First Century:
Is Liability Law Up To The Challenge Of Homeland Security? 

James J. Lawler
With statistical assistance by Brent Hill
Oklahoma State University

     Events of the past decade have made public policymakers increasingly aware of the potential for unexpected disasters of unimaginable magnitude and incalculable legal liability. Liability issues surrounding such events as an anticipated (albeit unrealized) Y2K worldwide computer failure (Ashdown, 1998; Fourdee, 2000), the response to the Oklahoma City bombing, the devastation of 9/11, anthrax-contaminated letters (Mugdan, 2002), and potential ecological catastrophes accompanying global warming (Grossman, 2003) led one legal scholar to propose the emergence of a “duty to expect the unexpected”(Seamone, 2003). These events led state legislators and courts to rethink policies concerning the appropriate balance of risks between society and individuals. Barkett (2003) predicts that the threat of terrorism will reshape tort law, especially notions of “duty of care”, forseeability, and damages. Another area of likely transformation is the immunity of emergency responders from tort liability. The unprecedented devastation in the wake of Hurricanes Katrina and Rita in 2005 will surely add to the pressure to eliminate legal barriers to decisive and effective emergency response.
     This paper considers developments in state tort law and public policy relating to liability of professional emergency responders. As used in this study, an “emergency” is a “sudden and usually unforseen” hazard requiring “immediate measures to minimize its adverse consequences” (IRIN, 1992:26). “Disaster” is an emergency having “a profound impact on local people or places, either in terms of injuries, property damages, loss of life, or environmental impacts” (Mitchell and Cutter, 1997:10). “Professional emergency responders” include all categories of professionals who regularly respond to emergencies or disasters, as members of the protective services (firefighters and police officers), medical professionals and paraprofessionals (physicians, nurses, Emergency Medical Technicians, or independent contractors (engineers, architects, etc.).
     The dependent variable of the study is “responder orientation”, defined as the prevailing attitude of policymakers toward the rights of emergency responders in relation to private citizen non-responders, as reflected in the policy rationales accompanying legislation or judicial decisions. Citizen-friendly policies (CFPs) maximize protection of private civilian rights—i.e., those of individuals suing emergency responders, their government employers, or skilled professionals volunteering for emergency response, or individual tortfeasors being sued by emergency responders—at the expense of emergency responders. Responder-friendly policies (RFPs) maximize protection of emergency responders at the expense of private civilian litigants. In recent years, there has been a shift in statutory and judicial policy in several states from a citizen-friendly policy emphasis toward a more responder-friendly emphasis. The objectives of this paper are to document and explain these developments, and to analyze their implications for emergency response in the twenty-first century.

SHIFTING TRENDS IN STATE EMERGENCY RESPONSE POLICIES
     Throughout much of the period following World War II, the trend in state tort liability policy, reflected in both statutory and common law, was toward modification of traditional liability policies to make them more citizen-friendly—in keeping with what were regarded as “modern” policy emphases of risk-spreading and deterrence of abuses by public servants. During the previous “era” of tort law (Rustard and Koening, 2002), the “Laissez-faire Negligence Era (1825 to 1944), state courts and legislatures emphasized protection of governments and corporate interests from the legal consequences of the emergencies and disasters accompanying rapid industrialization. The aftermath of World War II ushered in a new “Democratic Expansionary Era” (1944-1980) of plaintiff-oriented tort development (Rustard and Koening, 2002)—spearheaded by organized labor and later, by the Civil Rights Movement and Women’s Movement. Yet beginning in the 1980s, policymakers began to revise these priorities, as governmental and corporate interests, and the emergency responders, themselves, voiced concerns about the impact of the citizen-friendly policies on public safety and economic efficiency. These changes have been identified (Rustard and Koening, 2002) as an era of “Neo-Conservative Tort Law Retrenchment” (1981-present). Increasing concerns over terrorism since the mid-1990s provided a climate favorable to responder-friendly reforms. In some cases, citizen-friendly statutes were repealed and precedents were reversed. More often, the former policies have been subjected to qualifying amendments and legal precedents have been given narrow, limiting, interpretations to provide greater protection for emergency responders and their municipal employers. The legal dimensions of this new era of “Emergency and Disaster Response Protection” have yet to be analyzed. It is the purpose of this paper to do so.

HYPOTHESES
     Four explanations for the shift to more responder-friendly policies seem plausible:
     H. 1: The change toward RFPs is part of the broader Tort Reform Movement.
     The Tort Reform Movement, driven by insurance companies, industrial corporations, and physicians fearing malpractice suits (Page, 1988; Rustard and Koening, 2002), developed in the early years of the Reagan Administration and gained momentum after the Republican takeover of Congress in 1995.
     H.2: The change toward RFPs is a reflection of the political influence of emergency responder unions and professional organizations.
In contrast to trends in the private sector, public sector unions and professional organizations of police officers, firefighters, and medical technicians have been gaining in membership and bargaining strength in recent decades (Kearney, 2001), and it is possible that their desire to protect members from ruinous tort liability has added to the pressure for RFPs.
     H.3. The change toward RFPs is the result of socio-demographic factors leading to a greater sense of vulnerability to disasters and lawsuits.
Socio-demographic factors such as population size and density, urbanization, and economic development can increase the potential magnitude of extreme events, and could thereby explain a polity’s efforts to protect against liability from such occurrences.
     H.4. The change toward RFPs is the result of experience with past natural and manmade disasters.
States having a greater incidence of terrorism or natural disasters would, therefore, be more likey to adopt RFPs.
     The dependent variable in the study, RFPs, was operationalized in terms of state adoption of any or all of four legal doctrines crucial to the liability of emergency responders: government immunity, official immunity, the firefighters’ rule and good Samaritan laws.

FOUR DOCTRINES OF EMERGENCY PROTECTION
     Each of the four doctrines has undergone a similar pattern of evolution—increasing citizen friendliness throughout most of the post-World War II era, followed by a more recent shift in several states toward more responder-friendly approaches.

1. Government Immunity

Government or “sovereign” immunity is the immunity of sovereign or quasi-sovereign government entities from being sued without their consent. The English doctrine of sovereign immunity, expressed in the maxim “The King can do no wrong” (Blackstone, 1765), entered the common law of the United States during the early nineteenth century (Cohens v. Virginia, 1821;U.S. v. Clarke, 1834). The policy justification for government immunity is protecting the public fisc from avaricious litigants and those dissatisfied with government policies.
     The aftermath of World War II brought a movement toward limitation of sovereign immunity. After nearly three decades of consideration, the United States Congress waived federal tort liability in the Federal Torts Claims Act (FTCA, 1946) subject to important exemptions, and by the early 1980s, scholars detected “ a movement away from sovereign immunity of state and local governments from tort liability” (Davis, 1984:9). New York led the way in the nineteenth century, beginning with consent to be sued for compensation claims arising from construction of the Erie Canal and eventually broadening the waiver to include “virtually any claim.”(Ashdown, 1998: 68). Sovereign immunity was criticized by many legal scholars for being inconsistent with modern policies of risk-spreading, deterrence and corrective justice (Davis and Pierce, 1994; Schwartz, 1985).
     Yet during and after the 1990s, writers began to see a need to retain sovereign immunity to protect governments in decision-making without fear of reprisal (Ashdown, 1998; Krent, 1992)—concerns that escalated by the turn of the century. The prospect of Y2K led Nevada to enact legislation in 1997 specifically immunizing the state from liability for that kind of event. Other recent statutory amendments and judicial decisions narrowed a previously broad “proprietary acts” exception to the doctrine, broadened a previously narrow “discretionary acts” exception to waivers of immunity, or narrowed liability of municipalities from vicarious liability for the torts of their employees. Even United States Supreme Court read the doctrine into the Eleventh Amendment to restrict citizens from using federal laws as a basis of certain claims against state governments (Seminole Tribe of Florida v. Florida,1996; Alden v. Maine, 1999; Federal Maritime Commission v. South Carolina StatePorts Authority, 2002).

2. Official Immunity

Official immunity refers to the protection that government officials or employees may enjoy as individuals from lawsuits for conduct committed in the scope of their employment. According to the United States Supreme Court, the concept that government officers should be immune personal liability
(a)pparently rested, in it’s genesis, on two mutually dependent rationales: (1) the injustice, particularly in the absence of bad faith, of subjecting to liability an officer who is required, by the legal obligations of his position, to exercise discretion; (2) the danger that the threat of such liability would deter his willingness to execute his office with the decisiveness and the judgment required by the public good. Scheur v. Rhodes, 416 U.S. 232 (1974)
During the 1970s, the federal courts began to modify the doctrine in civil rights suits to provide for “qualified immunity” instead of absolute official immunity for lower-level executive officials performing acts within the scope of their duties (Holmberg v. Brent, Vermont, 1993). Qualified immunity protects executive branch officials only from acts done within the scope of their duties, within the range of permissible discretion, and in “good faith and reasonable belief ”. Gradually, this restriction of official immunity was taken over by state courts, as well, and extended to other lawsuits besides civil rights suits. More recently, however, some of the previous protection has been restored for emergency responders, by statutory amendments and judicial opinions interpreting “reasonable”, “good faith”, “scope of duties” and “permissible discretion” in their favor.

3. The Firefighters’ Rule

     The firefighters’ rule, a common law rule which was introduced by the Supreme Court of Illinois over a century ago in Gibson v. Leonard, (1892), and gradually spread to most other states, limits the duty of care owed to some or all emergency responders by precluding recovery from certain negligently inflicted injuries that they suffer when they respond to calls in the line of duty. The rule was initially justified on the basis of then prevailing tort doctrine concerning landowners’ duties to “licensees”, but as the latter doctrine declined in general tort law, other rationales were developed for the firefighters’ rule: assumption of risk and the notion that it would be unfair to allow public servants who are paid to respond to dangerous situations to be “doubly compensated” by having the right to sue for personal injury damages.
     Yet by the turn of the century, some state courts and legislatures expressed concern about the unfairness and even the unconstitutionality of the rule, because it discriminated against emergency response professionals, relegated their claims for damages to the workers’ compensation system, and discouraged risk-taking by the categories of public servants who are expected to deal promptly and effectively with emergencies and disasters. California, New York, and even Illinois, where the doctrine originated, limited the rule significantly in the twenty-first century.

• Good Samaritan Laws

     “Good Samaritan” Laws are statutes protecting various categories of volunteer rescuers from liability for their negligent actions during rescue operations and/or providing them with a remedy if they suffer injury (White, 2002). Under the traditional common law of torts, neither form of protection was available, and would be rescuers were given the invidious label “officious intermeddlers”. By 1960, all states and the District of Columbia had enacted Good Samaritan laws, but a majority of these protected only medical professionals (Velliux, 1989). During the 1980s, a series of tort suits against volunteers, followed by decreasing insurance coverage and rising premiums for volunteer rescuers (Smith, 1999), led some jurisdictions to rethink their policies and to adopt laws protecting non-medical emergency responders (Huber, 1990; Smith, 1999).

METHODS
     This exploratory study tests these relationships for 25 states, randomly selected, for the period 1993-2003*. The period, beginning with the explosion of a car bomb at the World Trade Center in New York, coincides with an increasing magnitude of disasters, as well as with the rise of the Tort Reform Movement, and was chosen because of the availability of data on the variables included in the study. Statutes and law cases in the sample states that relate to emergency responders were identified by a Lexis search. Legal analysis was then used to identify the holdings of the cases and the extent to which they represent citizen-friendly or responder friendly outcomes for the various dimensions of the four doctrinal areas. Independent variables were operationalized as follows: (1) state adoption of tort law reforms, by Lexis search of state laws on punitive damages; (2) natural disaster/emergency casualties, by the National Weather Service’s U.S. Natural Hazard statistics on fatalities and injuries by state; (3) terrorist events, by state, reported in the FBI’s “Terrorism in the United States” series; (4) public employee union density, by the percent of employees with bargaining rights covered by a collective bargaining contract (Kearney, 2001:30-31); (5) state population by U.S. Census Bureau, Statistical Abstract of the United States, data; (6) state population density and (7) state urbanization provided by the Wendell Cox Consultancy’s Demographia, based on population per square mile and percent of population living in settlements of 10,000 or more or more, respectively; and (8) state economic development by gross state product in current dollars, from the U.S. Census Bureau Statistical Abstract of the United States.
     Relationships between the dependent and independent variables were then subjected to multiple regression analysis.). The single dependent variable was changes in liability laws (Y). The independent variables were: population (POP), terrorist incidents (T), and weather-related casualties (W) tort reform laws (TR), union density (UN), gross state product (GSP), and urbanization (URB). Various predictor-selection methods used in this analysis—viz., forward, backward elimination, and stepwise. Each of these procedures was performed using the same beginning set of seven variables. In addition to the three aforementioned variables, tort reform laws (TR), union density (UN), gross state product (GSP), and urbanization (URB) comprised this initial pool of independent variables. The entry and removal criteria were set at p-in =.05 and p-out =.10, respectively, for each of the relevant procedures.

FINDINGS
     The various predictor-selection methods used in this analysis returned the same model: population (POP), terrorist incidents (T), and weather-related casualties (W). Table 1 reports the results of the multiple regression analysis for two models, the first including Table 1A) and the second excluding (Table 1 B) population. In Table 1A, the squared multiple correlation coefficient shows that the three independent variables account for 78.9% of the adjusted variability in the dependent variable (see Table 1A). It is noteworthy that the significance level associated with the independent variable population (POP=.052) is slightly larger than the conventional cutoff of a=.05. With rounding, POP would be within the usual significance limits. This variable remained in the equation because it did not exceed the p-out value specified in the various procedures.
     Table 1B shows the results if the POP variable were removed, leaving terrorist incidents (T) and weather-related casualties (W) as the only two independent variables. The amount of reduction in R2 from Model 1A to this model (1B) can be determined from the semipartial correlation coefficient for POP (.1982 =.039)-- an incremental R2 loss if about 3.9% in the variance accounted for if POP is removed (R2=75.6 %).
     Table 2 reports the correlation matrix for the variables. It should be noted that pop is highly correlated with the variable gross state product (GSP) (R=.99), to the point that the two variables are virtually interchangeable. Urbanization (URB) is also highly correlated with POP and GSP (R=.59 and R=.61, respectively). Table 3 also shows the absence of statistically significant relationships between RFPs (Y) and Tort Reform (TR), and between RFPs (Y) and Unionization (UN). Consequently, H.1 and H.2 positing significant relationships between RFPs and those independent variables can be rejected.
     Table 3 reports the information relevant to each of the three independent variables and the constant (y-intercept) entered into the overall regression model, including collinearity statistics. In this case, it would seem that the standardized regression weights (β) are more informative than the unstandardized weights (b). The magnitude of an unstandardized regression weight is influenced by the measurement scale of the independent variable (e.g., for the POP variable, b = 5.3 × 10-5, yet b = .291). Because of this, they are incomparable with respect to relative importance; however, the standardized weights are conducive to such comparisons among the independent variables. The t-ratios and corresponding p-values represent the significance tests of the regression weights for each independent variable. Also note that the p-value associated with the constant (intercept) is rather large (p = .579), which indicates that the y-intercept is statistically not significantly different from zero.
     The Variance Inflation Factor (VIF) is an indicator of muticollinearity for each independent variable in the equation. None of the three independent variables in the current equation exhibit an unfavorable amount of multicollinearity, even with conservative limits (e.g., VIF ≥ 2.5).

DISCUSSION AND CONCLUSIONS
     On the basis of these findings, H.1 and H.2 can be rejected. Neither the Tort Reform Movement nor the strength of public sector organizations seems to be a significant influence in adoption of Responder Friendly Policies. The findings for H.3 are debatable. Of the demographic variables tested, only population size, and Gross State Product and Urbanization which are correlated with it, seem to have a significant relationship to RFPs, and the significance appears at the .05 level only by rounding. On the other hand, the findings clearly support H.4.: the hypothesis that patterns of state liability laws pertinent to emergency responders are positively related to the incidence of emergencies and disasters, specifically terrorism and casualties from natural disasters.
     The impact, if any, of the 2005 hurricanes on state liability law should further test these hypotheses. If states, particularly those most impacted by the hurricanes, make revisions to provide added legal protection for emergency responders, the responsiveness of the law to disasters will be increasingly clear. On the other hand, the extraordinary public dissatisfaction with the response to these disasters might conceivably trigger a backlash restoring emergency liability. The government response to the hurricanes led many observers to question the extent to which the law is in touch with reality. This study provides evidence on the basis of pre-2005 natural disasters and terrorist incidents that at least the state laws concerning legal liability are responsive to the legal interests of the responders.

TABLE 1. Model Summary

(A) Predictors: POP, T, W
(B) Predictors: TW

TABLE 3. Independent Variables and Regression Coefficients
Coefficients (a)

NOTES

*States included in the study were: California, Colorado, Connecticut, Florida, Georgia, Illinois, Indiana, Kansas, Louisiana, Massachusetts, Michigan, Mississippi, Montana, New Jersey, New York, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, South Carolina, Texas, Virginia, and Wisconsin.

REFERENCES

BOOKS AND ARTICLES:

Ashdown, J. (1998). “Don’t Let the Millennium Bug Bite: Should New York Reinsate Sovereign Immunity for the Year 2000 Computer Glitch?” Albany Law Review, vol. 62:293-313.

Barkett, J. M. (2003). Widener Law Symposium Journal , vol. 9: pp.485-530.

Blackstone, W. (1765). Commentaries on the Laws of England, 1st ed. Oxford: clarendon

Davis, K.C. and Pierce, R.J., Jr. (1994). Administrative Law Treatise, 3rd ed. (Githersburg, Md.:Aspen.

Fourdee, B.W.(2000).“The Year 2000 Problem and the Courts,” Kansas Journal of Law and Public Policy, vol. 9:515-540.

Grossman, D.A. (2003). “Warming Up to a Not So Radical Idea: Tort-Based Climate Change Litigation,” Columbia Journal of Environmental Law, vol. 28:1-49.

Harvard Law Review (1998). “ Government Tort Liability”, Harvard Law Review, vol. 111: 2009-25.

Huber, P.W. (1988) Liability: The Legal Revolution and Its Consequences. N.Y.: Basic Books.

IRIN News Organization, U.N. Office for the Coordination of Humanitarian Affairs, (2005). Disaster Reduction and the Human Cost of Disaster, IRIN Web Special, October 3.

Krent, H. (1992). “Reconceptualizing Sovereign Immunity,” Vanderbilt Law Review, 1529-96.

Mitchell, J.T., and Cutter, S.L. (1997). Global Change and Environmental Hazards: Is the World Becoming More Disastrous? Wasington, D.C.: Association of American Geographers.

Mugdan, W. E. (2002). “Environmental Law Issues Raised by Terrorist Events in 2001” Albany Law Environmental Outlook, vol. 7: 67-99.

Page, J.A. (1990). “Deforming Tort Reform, ”Georgetown Law Journal, vol. 78: 649-89.

Rustard, M.L. and Koenig, T.H. (2002) “Taming the Tort Monster: The American Civil Justice System as a Battleground of Social Theory,” Brooklyn Law Review, vol. 68:1-78.

Schwartz, B. (1985). “1984 Survey of N.Y. Administrative Law,” Syracuse Law Review, vol. 36:1-67.

Seamone, E.R. (2003). “The Duty to Expect the Unexpected: Mitigating Extreme Natural Threats to the Global Commons Such as Asteroid and Comet Impacts with the Earth,” Columbia Journal of Transnational Law, Vol. 41: 735-84.

Smith, M. (1999) “Tort Immunity for Volunteers in Ohio” Akron Law Review, vol. 32: 699-718.

Villeux, Danny R.(1989). “Annotation: Construction and Application of ‘Good Samaritan’ Statue”, American Law Reporter, vol 4:294-305.

White, C.H.(2002). “Note and Comment: No Good Deed Goes Unpunished: The Case for Reform of the Rescue Doctrine,” Northwestern University Law Review, vol 97, pp. 507-546.

COURT CASES CITED IN TEXT:

Alden v. Maine, 527 U.S.706 (1999)

Cohens v. Virginia, 6 Wheaton 264 (1821).

Federal Maritime Commission v. South Carolina State Ports Authority, 535 U.S. 743 (2002)

Gibson v. Leonard, 143 Ill. 182, 32 N.E. 182 (1892).

Holmberg v. Brandt

Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996)

Scheurer v. Rhodes, 416 U.S. 232 (1974)

U.S. v. Clarke, 33 U.S. 436

STATISTICAL SOURCES:

Demographia. U.S. State Urban Share. “Population and Density: 2000”, Belleville, IL: Wendall Cox Consultancy, 2005; http://www.demographia.com/db-urb2000state.htm.

National Oceanic and Atmospheric Agency, National Weather Service, “Natural Hazard Statistics: State Summaries”. http: //www. Nws.noaa.gov/om/hazstate.shtml.

U.S. Census Bureau, “State Rankings: Gross State Product in Current Dollars”, Statistical Abstract of the United States, 2003. http: www.census. gov/statab/ranks/rank28.html
 
U.S. Census Bureau, “State and County Quick Facts;” http: //www.census.gov.

U.S. Department of Justice: Federal Bureau of Investigation, Terrorism in the United States, 1996-2001,
http://www.fbi.gov/congress01/free051001.htm.