1. 1 Authored by John W. Desmarais 18-May-1999 Updated by 09-Jul-2008 Modified by Lt Colonel Fred Blundell TX-129 Fort Worth Senior Squadron For Local Training Rev 5.0 02-J an-2014

2. 2 This Training Slide Show is a project undertaken by Lt Colonel Fred Blundell of the TX-129 Fort Worth Senior Squadron, Fort Worth, TX for local use to assist those CAP Members interested in advancing their skills. The information contained herein is for CAP Member’s personal use and is not intended to replace or be a substitute for any of the CAP National Training Programs. Users should review the presentation’s Revision Number at the end of each file name to ensure that they have the most current publication.

3. 3 Communication is the Key This presentation will not answer all of your questions about liability, BUT your local legal counsel CAN

4. 4 The Threat Case Filings are generally increasing Claims against the government are dramatically increasing Plaintiff chances of winning are increasing Award sizes have increased

5. 5 Deep Pockets Government bodies of all types are assumed to have DEEP POCKETS and are believed to be able to pay large settlements and awards Civil Air Patrol is seen this way though we are a non-profit corporation in reality

6. 6 Tort Liability Tort An action that harms another person, business or group Occurs when a person or group of people act, or fail to act, without right, and thus harm another directly, or indirectly

7. 7 Tort Liability (Continued ) Strict Liability Violation of the law or other regulations, even if violation is unintentional Intentional Liability –Known violation of the law or other regulations and harmful results Breaking Traffic Laws

8. 8 Tort Liability (Continued) Negligent Liability Negligent Liability Person fails to do what a reasonable and prudent person would have done under the same or similar circumstances Person fails to do what a reasonable and prudent person would have done under the same or similar circumstances Basic First Aid Basic First Aid Warrant LiabilityWarrant Liability –Promised service level is not delivered and harm results Failure to support MOUsFailure to support MOUs

9. 9 Tort Liability (Continued) Civil Rights Liability Constitutional rights are violated Physically restraining public from entering accident site

10. 10 Elements of Liability Four elements must be present to prove liability: Duty or standard to act Breach of duty - either an action or omission Failure caused the harm Actual measurable loss or harm

11. 11 Duty to Perform Existence of duty establishes standard of conduct

12. 12 Failure to Perform Breach of the duty required to prove negligence

13. 13 Foreseeable Cause Failure to perform duty results in direct or indirect harm

14. 14 Harm There must be a measurable harm caused through: Damage to property Physical injury Mental anguish

15. 15 Elements of Liability All four elements MUST be present to prove that liability exists

16. 16 Government Immunity Sovereign Immunity has been steadily eroding since the 1960s

17. 17 Types of Immunity Absolute Discretionary Qualified Statutory

18. 18 Absolute Immunity Absolute immunity is enjoyed by very few officials: United States President Judges

19. 19 Discretionary Immunity Covers the formation of policy, not its implementation

20. 20 Statutory Immunity Created by legislation - “Good Samaritan” provisions

21. 21 Qualified Immunity Sometimes known as “Limited Immunity” Often Statutory in nature Requires certain actions to be taken prior to filing a suit

22. 22Immunity You may be required to prove, in court, that your actions are immune

23. 23 How Liability May Arise Problems with PLANNING Poor Plans Out-of-date plans Unrealistic plans Problems with TRAININGProblems with TRAINING –No training –Undocumented training –Unsafe training

24. 24 How Liability may Arise (Continued) Problems with NOTICE Problems with NOTICE Hazards not identified Hazards not identified Hazards not prioritized Hazards not prioritized Hazards ignored Hazards ignored Problems with duty to WARNProblems with duty to WARN –Warnings not given –Improper warnings given –Warning systems not fully utilized

25. 25 How Liability may Arise (Continued) Problems with NEGLIGENT OPERATION Equipment not employed properly Plans/procedures not followed Equipment not maintained

26. 26 How Liability may Arise (Continued) Problems with VICARIOUS LIABILITY Personnel not trained Standards not present and/or enforced

27. 27 How Liability may Arise (Continued) Problems with INVERSE CONDEMNATION Problems with INVERSE CONDEMNATION May not be applicable to all jurisdictions May not be applicable to all jurisdictions When harm is identified, provide quick remedial action When harm is identified, provide quick remedial action Problems with ATTRACTIVE NUISANCEProblems with ATTRACTIVE NUISANCE –Remember Murphy’s Law –Take special precautions –Be aware of children’s actions

28. 28 Standard of Care Always changing for any community Standard of Care five years ago, may not apply today

29. 29 Standard of Care (Continued) Considerations in determining Standard of Care include: Considerations in determining Standard of Care include: Cost/Benefit analysis Cost/Benefit analysis Capabilities of in-place systems Capabilities of in-place systems Capabilities of similar systems Capabilities of similar systems Court decisions/rulings Court decisions/rulings What is reasonable under the same or similar circumstances?What is reasonable under the same or similar circumstances?

30. 30 Standard of Care (Continued) You must work to keep current in your field to meet changing requirements

31. 31 Working with Legal Counsel Your local attorney can help define and limit liability Maintain regular contact with your legal counsel. There should be ongoing, effective communication. Local legal staff should be an integral part of the planning and response systems

32. 32 Aircraft Crash Laws Aircraft Crash Laws The National Transportation Safety Board (NTSB) is responsible for the investigation and determination of probable cause in aircraft accidents, as well as keeping a public record of the same. Title 49 of the US Code Additional guidelines available in FAA regulations and CAP Safety Regulations

33. 33 Trespassing AFRCC can’t authorize ground teams to enter private property Get Law Enforcement Assistance or Owner’s Permission or BOTH You have no more rights than a regular citizen ELT signal is not necessarily cause for entry

34. 34 Assault & Battery BE NICE - You are never authorized to use force in executing your duties. –Don’t yell at, push, shove or otherwise restrict people from entering crash sites/crime scenes; that is a law enforcement job –Remember that everything you do on a CAP mission reflects not only upon yourself, but every other member of the organization

35. 35 Summary Liability issues are complex and varied Workshop should raise more questions, than to provide answers Answers to questions are available through your local legal counsel Success will depend on the follow-up actions you take in the next few days

36. 36 Legal Tasks Anything that you do as a member of the Civil Air Patrol Emergency Services Team could have legal ramifications. –Stay alert and aware –Operate within the law –Operate within CAP Regulatory Guidance –Do your job as you have been trained, if you do that, we don’t normally have any problems

37. 37 QUESTIONS? ALWAYS THINK SAFETY!