There are also some serious liability issues that FEMA just released in a recent document. I posted it on QRZ and below is the link and a condensed version of the important facts of the 30+ pages. For me, I dropped out of ecomm after being educated as to the personal liability that I choose not to expose myself to. My professional position involves public safety communications, but during my off-hours, I'm just going to chat on the amateur radio.
In the below, just replace CERT with ARES or RACES while reading it.
http://www.citizencorps.gov/cert/dow...lity_Guide.pdf The CERT Liability Guide is offered for general informational purposes only. It does
not provide legal advice, and the user is encouraged to seek out state specific
legal advice from a qualified attorney before taking any action. Keep in mind
that, with a few limitations, anyone can file a lawsuit against anyone else.
Nothing, including following the recommendations in this Guide, is a guarantee
against being sued.
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CERT programs must be affiliated with or sponsored by a local government agency, and
engage in operational activities only under the command and control of that
agency. Thus, CERT programs do not operate without the confidence of
professional emergency response agencies, and those agencies are more likely to
have confidence in a CERT program that takes steps to manage
risk.
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Some potential CERT members may be concerned about personal liability or about being injured or
contracting an illness during CERT activities, and they may decline to
participate if not protected. Providing liability protection and injury benefits
limits this barrier and conveys the message that CERT members are a valuable
part of the sponsor's team.
________________________________________
CERT programs establish a separate nonprofit organization, or are sponsored by an educational or
business entity, but they must always be endorsed by local government.
Managing risk is an ongoing process, so support must be nurtured, expanded, and revisited when
circumstances change or new information is identified.
First, consider the different types of civil liability that volunteers and CERT programs should be aware of.
Civil liability results when there is legal basis for holding someone responsible for injury or damage.
The four main types of civil liability that apply to CERT programs include:
• Negligent acts or omissions —The failure to fulfill a duty to use ordinary care,
which is the care that a reasonable person would use under similar
circumstances. Any activity in which carelessness can cause injury or property
damage may be considered negligent.
• Intentional acts — Intentionally
committed wrongful act; this may require proof that person intended to cause
harm.
• Strict liability — Legal responsibility for damages based on the
nature of an activity, rather than on a negligent or intentional act. Because
CERT members are trained only to respond to events they're capable and trained
to handle, strict liability exposure is limited.
• Liability for the acts of others — Legally responsible for actions of someone
you have the right to control. An employer is usually liable for job-related actions of its employee.
Failing to screen or train a volunteer may result in CERT program being liable.
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When adopting an activation strategy, it is important to understand that there is no activation
approach that guarantees against liability. On its face, self activation may
appear to insulate the program leaders and the sponsoring organization from
liability by separating them from deployment or direction of members. This fails
to recognize two important factors.
First, there are links with the CERT program even if members self-activate.
• Self-activation may be pursuant to a standing order, and not all that different – for liability purposes – from an
order to activate issued at the time of an emergency.
• CERT programs have multiple points of contact with their members. Even if its members
self-activate, an injured person might argue that the CERT program has put the
member in a position to respond and that CERT training shaped their actions. An
injured member might argue that CERT training did not adequately prepare for the
situation encountered.
• By accepting members and instructing them to self-activate, some might argue that the CERT program has implicitly made a
decision that the members are capable of responding without supervision, and an
injured person may question that decision.
• Even self-activated CERT members can appear to the public to be acting on behalf of the CERT program if they
carry officially issued CERT identification, wear CERT identifying vests or
personal protective equipment, or identify themselves as CERT members during a
response.
Any of the above might be argued as grounds for program liability, even if CERT members self-activate.
Second, self-activation does not offer the risk control benefits of program activation for specific
emergencies. A CERT that activates its members to respond to specific
emergencies may reduce the chance that its members will respond to situations
that are beyond their capabilities. If CERT program activation enhances
oversight at the emergency scene, it can also help ensure that members work
within their level of training and comply with the CERT program's rules. Both of
these effects reduce, although they do not eliminate, the chances of
liability.
Another concern is that self-activation may prevent CERT members from qualifying for liability protection under various federal and state
laws. This will be discussed further below in Providing benefits for injured CERT members and Protecting CERT members from liability.
Neither activation strategy eliminates a CERT program's potential liability for the acts
of, or injuries to, its members. Each program should analyze the risks and
benefits of each approach and choose the strategy that is most effective for its
needs. Then acknowledge and manage the remaining
risks.
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Protection from the financial effects of liability.
Even the best risk control program cannot eliminate all liability. There remains a small but real chance of an injury,
property damage, or other harm. A sponsoring agency has this; residual; risk
from all of its activities – whether or not it sponsors a CERT program. The cost
of damages, defending a claim or lawsuit, and providing injury benefits can be
substantial, so no risk management program is complete until there is a plan to
pay these costs. Recruiting members is also easier if there is a plan to protect
volunteers from liability and to provide them with benefits if they are injured
or become ill. While CERT programs are most often sponsored by a local
government agency, incorporated nonprofit organizations, businesses, or
educational institutions may coordinate training and organize teams. In
addition, a few CERT programs have established separate nonprofit organizations
to raise funds. Thus, more than one legal entity can be involved in a CERT, and
each is responsible for protecting itself and its officials, employees, and
volunteers from the financial effects of liability. Protection for one person or
legal entity – whether by law or insurance – does not automatically protect
others.
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Even if CERT members cannot receive administrative workers' compensation benefits, that does not
preclude liability for their injuries or illnesses. An injured CERT member who
is not eligible for workers' compensation benefits can file a civil lawsuit
seeking lost wages, medical costs, pain and suffering, and other damages from an
injury caused by the act or omission of someone else. Potential targets of
lawsuits include the sponsoring agency or local government, other volunteers,
trainers and team leaders, to name a few. The lawsuit will fail, however, unless
the target was at fault, the fault caused the injury and resulting damages, and
the target of the lawsuit is not protected by governmental or another statutory
immunity.
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The VPA excludes protection for volunteers who are operating a motor vehicle or other vehicle for
which the state requires an operator's license or insurance. It also excludes
volunteers who are performing acts for which the volunteers are not
appropriately licensed or are not within their area of responsibility. It
provides only immunity, and thus does not provide for payment of legal defense
costs, judgments, and settlements. It does not protect against liability for
gross negligence, willful and wanton negligence, or similar extreme
conduct.
________________________________________
Emergency management and homeland security laws:
State emergency management and homeland security statutes may provide limited
immunity from liability to individual CERT members who are working as registered
emergency or disaster workers. These laws sometimes provide indemnity as well.
They are most likely to protect CERT members who are ordered to activate and
participate in an official emergency response under the direction of an
emergency response agency. Members who self-activate under a standing order or
standard operating procedure may also be protected. Members who self-deploy
without any order are less likely to be protected by emergency management laws,
but they may still benefit from Good Samaritan protection. Check with an
attorney or risk manager to determine how activation methods affect CERT
members' liability protection. Historically, organizations (such as businesses)
that volunteer their resources in an emergency have not been provided with
similar liability protection. As the important role of businesses and nonprofit
organizations in emergency response has become more apparent, however, there is
increasing attention to protecting them as well. State laws are thus beginning
to incorporate protection for these important partners.
________________________________________
Liability insurance/self-insurance. Liability insurance is a form of indemnity and is an
important tool for protecting CERT members. It does not prevent an injured party
from suing and recovering damages, but, from a CERT member's perspective, the
protection of good liability insurance can be broader than immunity. Liability
insurance that covers emergency management volunteers is less likely to have
some of the exclusions and limitations that leave gaps in the protection offered
by immunity statutes, and, unlike immunity laws, liability insurance also
provides funds to pay defense costs, settlements, and judgments.
Here is the QRZ link with a bunch of reader comments...
http://forums.qrz.com/showthread.php?354560-Interesting-FEMA-Document
