The devastation wrought by Hurricane Helene in Western North Carolina underscores the critical importance of emergency management in protecting the public health, safety, and welfare. It has also emphasized the related need to protect emergency response workers from undue liability concerns that may hamper their ability to urgently and effectively respond. To these ends, the General Assembly has provided special immunity for emergency management personnel and volunteers, in large part, through the Emergency Management Act (G.S. Chapter 166A). This post provides an overview of liability protections in emergency management along with some basic recommendations for risk mitigation.
Statutory Immunity Protections
In general, North Carolina statutes grant broad immunity from liability for emergency management workers engaged in emergency management functions. G.S. 166A-190. All functions performed under the Emergency Management Act and all other activities related to emergency management are deemed “governmental functions” for immunity purposes, shielding the State, local government units, emergency management workers, and, in more limited instances, certain private agencies, from liability for “the death of or injury to persons, or for damage to property as a result of any emergency management activity.” G.S. 166A-190(a). The Emergency Management Act defines emergency management functions to include each stage of the “never-ending preparedness cycle,” such as planning, emergency assistance, recovery, and mitigation. G.S. 166A-19.3(8). However, this grant of immunity is not absolute. Harm resulting from willful misconduct, gross negligence, or bad faith is not covered.
Emergency Management Workers
Under G.S. 166A-190(e), emergency management workers include full or part-time paid employees, volunteers, or auxiliary employees serving under the control of or at the request of state and local governments. Individuals engaging in emergency management activities outside of the order or control of state or local government would likely not qualify as “emergency management workers” entitled to immunity. The statute further provides that individuals and employees engaged in emergency management activities are entitled to any benefits, including compensation, leave, and workers’ compensation, for which they would otherwise be entitled. G.S. 166A-190(c).
The immunity statute also suspends licensure requirements to practice any professional, mechanical, or other skill for any authorized emergency management worker performing an emergency management function during a declared state of emergency. G.S. 166A-190(d). Even with this protection, emergency management workers should exercise care and caution while performing highly technical activities.
Volunteers
Volunteers can be invaluable in emergency response efforts. They, too, are entitled to immunity under both federal and state law. Similar to emergency management workers, immunity for volunteers does not protect against gross negligence, intentional actions, or acts beyond the scope of the volunteer’s duties. G.S. 1-539.10. For local governments engaging volunteers, as explained in greater detail below, it is important to manage these individuals appropriately to avoid liability for their actions. Otherwise, a local government unit may be exposed to liability under theories of negligent supervision, assignment of nondelegable/inherently dangerous activities, or agency.
Private Property & Private Citizens
In some instances, private property (both real and personal) is used in disaster response and recovery operations. Owners of private property are immune from liability for injury to or death of any person or damage to other property, when their property is used to render emergency management aid. G.S. 166A-19.61. Emergency management activities utilizing private property might include an emergency evacuation shelter, temporary first aid shelter, or supply distribution center. A private property owner is immune from liability “regardless of whether their property was used voluntarily or involuntarily, knowingly or unknowingly, with or without compensation.” G.S. 166A-19.61. As for private citizens during times of emergency, persons who willfully ignore disaster warnings may be liable for the costs of recovery efforts undertaken on their behalf. G.S. 166A-19.62.
Related Immunity Statutes
North Carolina’s “Good Samaritan Law” provides immunity to anyone that renders first aid or emergency assistance at the scene of a motor vehicle crash. G.S. 20-166(d). Wanton conduct or intentional wrongdoing are excluded. The legislature has also granted immunity to individuals who render first aid or emergency health care treatment in certain circumstances. G.S. 90-21.14. As with other immunity statutes, wanton conduct, gross negligence, and intentional wrongdoing are not covered.
Mutual Aid Agreements
As the name suggests, mutual aid is a cooperative, collaborative model deployed in response to, among other things, disaster relief. The Statewide Mutual Aid Agreement (“Agreement”), in particular, is a voluntary agreement among North Carolina local governments to share resources, including supplies, equipment, facilities, personnel, and services, during a disaster. Law enforcement agencies may also agree to temporarily provide assistance in the form of personnel, equipment, or supplies, to another law enforcement agency (unless limited or prohibited by ordinance of the governing body). G.S. 160A-288. The Emergency Management Act specifically addresses the employment status of emergency management workers providing emergency management services pursuant to an agreement for assistance or mutual aid. In instances of mutual aid or assistance involving the state or a local government unit, employees retain the same powers, duties, immunities, and privileges they would ordinarily possess if performing their duties within the geographical limits of the state or political subdivision in which they are typically employed or rendering services. G.S. 166A-190(f). The Agreement further specifies that the party furnishing aid and the party receiving aid are responsible for payment of workers’ compensation benefits to their respective employees (Section IX). In addition, the Agreement contains a mutual indemnification provision (Section XI).
Risk Mitigation Strategies
Emergency response requires swift and decisive action, leaving little time or resources for assessment of potential legal risks. As local governments continue to engage in disaster response and recovery efforts following Helene, the following short and long-term risk mitigation strategies may be of use:
- Consult with the local attorney. Perhaps the most effective and practical way to mitigate liability risks is for local government leaders, employees, and volunteers to consult with the city or county attorney. While of limited use in the immediate wake of a major natural disaster, moving forward, it may be a helpful exercise to discuss the jurisdiction’s insurance coverage with the local attorney and identify possible gaps in coverage or limits on liability that may impact future emergency management operations.
- Document, document, document. Documentation may be the best defense to potential legal claims. Maintaining complete records can help establish compliance with formal processes and procedures, the exercise of reasonable care in response and recovery efforts, and notice or approval from an appropriate official. This documentation may help protect a local government unit (and its individual officials and employees) from future liability. In the long run, ensure the unit’s written emergency management policies and procedures are up to date.
- Carefully draft and review contracts. Contracts, memoranda, and mutual aid agreements are commonplace in emergency management. Certain types of contracts require specific legal provisions and may be unenforceable without them. To illustrate, procurement contracts with the Federal Emergency Management Agency (“FEMA”) require 13 distinct contractual provisions along with 8 “recommended” provisions. Seek guidance from the governing board’s attorney in drafting and reviewing such contracts.
- Effectively manage volunteers. As noted above, effectively managing affiliated and non-affiliated volunteers may help reduce a local government’s liability in emergency management and improve logistical efficiency. Encourage volunteer affiliation with a known disaster response organization like the American Red Cross, AmeriCorps, or a community organization. Often times, these organizations train and supervise volunteers, and their liability insurance policies may provide coverage for volunteers. For unaffiliated volunteers, assign appropriate tasks and provide proper oversight. Designate a place for volunteers to report, retain copies of their intake forms, and verify their credentials, where possible. Ultimately, emergency managers may wish to integrate volunteers into the unit’s Emergency Operations Plan.
- Conduct training. Another forward-looking risk mitigation strategy is well-documented (are you sensing a theme?) training standards. Training programs should comply with federal and state law, reflect best practices for emergency management, and occur routinely.
For more on liability issues in emergency management, the N.C. Division of Emergency Management, N.C. Emergency Management Association, and School of Government developed and authored a comprehensive (albeit somewhat outdated) guide. This “Legal Mitigation Checklist” may also be helpful. The School of Government and its partner organizations stand ready to support communities affected by Helene in the days, weeks, and months ahead. An ongoing repository of Helene Response Resources from the School of Government is available here.
