**** The information written here is not legal advice and the author of this blog is not your lawyer. These posts merely contain ideas to help you plan and organize your legal research and identify potentially helpful sources of law. ****
One of the best places to start answering this question is in newspaper articles about lawsuits arising from past weather emergencies. Go to the online version of your local newspaper or to papers from other cities that have had major tornadoes, blizzards, etc… and see if there are articles telling who sued, what legal grounds they claimed, and how their cases turned out. You probably remember the names of the significant storms in your area; use those, along with “sued” or “lawsuit” or “legal”, as your search terms in the newspaper site. Since court cases are public, you want to look for dates, claimants’ names, and court identification in these news articles. Then, at least if you found some local cases, you can go to the court clerk’s office and look through the documents filed in the case to get ideas about writing your own.
Local and county governments make emergency plans for dealing with severe weather and they rely on state and federal programs for additional support in extreme circumstances.[i] Plans are not laws, but because they set forth obligations for government units, they have a degree of legal authority. They are assurances from the government to the people and the people have a right to expect that those assurances will be fulfilled to the best of the government’s ability.
The authority to make county and municipal emergency plans, which necessarily disrupt and alter ordinary local government responsibilities, comes from state statutes.[ii] Protection rights for the homeless during weather emergencies can arise in connection with these plans and the fact that the plans are authorized by statutes.
After a weather emergency, the legal question a victim of the weather asks is “can I sue the government for not doing enough to help?” The answer is “maybe.”
The victims could say that the government had a duty to protect them or rescue them or provide post-emergency help. They could say that by not fulfilling their duty, the government caused harm to come to the populace. It would be a basic negligence analysis.
There are two likely challenges to this seemingly easy analysis: the doctrine of sovereign immunity and the difficulty of proving exactly what duty the government owed. It can also be hard to prove that government inaction was the cause of harm when it is obvious that the severe weather itself was the true cause; at most the government can only be a contributing cause to a victim’s continued exposure to the weather.[iii]
The doctrine of sovereign immunity can come from cases or statutes in either state or federal legal analysis. It says that the government is immune from being sued.[iv] In every jurisdiction, there are numerous exceptions to this doctrine.[v]
|—- The Federal Tort Claims Act,[vi] is a blanket exception to sovereign immunity, entitling people to sue the federal government for just about any action other than those that are based on discretion. It allows that the federal government can be sued for negligent acts or omissions in weather emergencies.[vii] The Federal Emergency Management Association was sued by approximately 250,000 people asserting that the agency owed them adequate temporary housing after Hurricane Katrina.[viii] —-
The only way to know if any state’s doctrine of sovereign immunity makes it impossible to sue for injuries in a particular circumstance is to study the state’s law and compare it to what happened to the person wanting to sue.
| —- To find a state’s sovereign immunity law or laws, look in the alphabetical index to any state code under “government liability,” “state liability,” or “government immunity” to see the circumstances under which they say that the state cannot be held liable. Some states have just one sovereign immunity law; others include it within numerous topical categories such as law enforcement, utility service, waterways, etc… —-
When a state’s sovereign immunity laws do not prevent people from holding emergency workers liable in weather emergencies, injured people have the chance to bring a negligence claim in court.[ix] This is when they have to show that the government breached its duty. To prove duty, it is most effective to show specific obligations that the government itself has described. Some sources of those are the local weather emergency plans mentioned earlier in this post.
Here are some sample weather emergency plans for homeless populations:
In Boston, the Emergency Shelter Commission compiles an electronic guide to expanded hours and spaces at shelters. The guide also states that the EMS service, the park rangers, and the police will drive around looking for homeless people and will help them get out of the bad weather.[x]
In Allegheny County Pennsylvania, the Bureau of Hunger and Housing Services operates one facility called the Severe Weather Emergency Shelter when the temperature goes down to twenty degrees; there is freezing rain, heavy snow, or an extreme wind chill; or when the National Weather Service has declared an emergency weather situation.[xi] Baltimore also opens one specific facility to operate as a shelter for the homeless in extreme weather.[xii] Milwaukee police dispatch an outreach team to help street dwellers get inside when the weather is extremely cold.
In all of the known areas where homeless people sleep, Mahoning County, Ohio posts notices titled “There is a Warm Place to Sleep.” The notices tell the homeless how to get in contact with the area Rescue Mission.[xiii] New York City used to have an entire Homeless Outreach Unit in its police department. In dangerous weather, that unit would make the rounds of known homeless hangouts and helps the inhabitants get to safe places. The city still has an entire department of homeless services. [xiv]
In claiming that Boston or New York (when it used to offer pick-up service) was negligent for not saving him from a blizzard, a homeless person could assert that emergency workers did not drive to a known homeless settlement looking for people needing a ride to shelter. In Anchorage, a claim might assert that the database of cold weather shelters had incorrect information that caused someone to die or suffer injuries from not being able to find a shelter. In Pittsburgh and Baltimore, the strongest negligence claims would assert that the emergency shelters weren’t opened or else that they weren’t sufficient.
Being able to prove that any of these duties exist is only the first part of proving negligence. Even if a plaintiff is able to prove all of the parts of the negligence analysis, there will almost surely be a response from the government asserting that the homeless person contributed to causing his own weather-related suffering. This kind of response will differ depending on each homeless person’s circumstances. But it might say that the homeless person should have gotten himself to a shelter before the weather got so bad or that he should have taken advantage of the local free shoes and coats program or that he simply should have found a phone and called the free emergency line.
In almost every community, it is appropriate to dial 911 (or 311 or 411-the local emergency line), which is a free call from pay phones, to seek help in a weather emergency. Operators at these call centers will tell callers where they can get shelter and will generally ask for information that they can relay back to rescue workers. They might want to know how many other homeless people are with the one who is calling and whether any of those people have known vulnerabilities or medical problems. The police will not necessarily be available to transport stranded people, but the city or the health department may have made transportation arrangements with a local organization or volunteers.
[i] The federal statute establishing the backup system for emergency responses is 42 USC § 5121 et seq. (2007). There is a wealth of information available in William C. Nicholson, Emergency Response and Emergency Management Law, (2003). Note that the National Coalition for the Homeless has collected data about community standards for helping homeless people when temperatures are very cold. In a lawsuit, this data could be used to assert either that a particular community is below par or is doing as well as any ordinary community would do.
[ii] To find state laws authorizing local governments to make emergency plans, link from the list of links to each state government’s emergency service agencies at http://www.statelocalgov.net/50states-public-safety.cfm. If that doesn’t work, look in the state code under “disaster preparation” and “emergency planning.” At least one of those phrases should get you to the right information. See also: Howard D. Swanson, The Delicate Art of Practicing Municipal Law Under Conditions of Hell and High Water, 76 N.D. L. Rev. 487 (2000), which is a detailed explanation of how local government adjusts to best help the public in disasters. It has a list of state emergency statutes in footnote 10.
[iii] Springer v. U.S., 641 F. Supp. 913 (D.S.C. 1986). In this case, the National Weather Service was liable for failing to amend a weather forecast when it was known that airline pilots would make flying decisions based on the forecast. In other words, the weather would not have harmed the flyer if he had not been in it and he would not have been in it if the forecast had properly warned him.
[iv] One example is Kentucky, Ky. Rev. Stat. Ann. § 39A.280 (West 2006), declaring that emergency personnel cannot be held liable for failing to help people unless their lack of help was gross negligence.
[v]A weather-related exception, occasionally seen in federal law, is that the National Weather Service can be held liable for harm or loss resulting from an incorrect weather forecast. But, there are limited circumstances when it is legal to hold the weather service liable. Springer, 641 F. Supp. at 913, found them liable (as described in the earlier note), but that was for failing to post the amended and more accurate information that should have been made available to the plane pilot. Brown v. U.S., 790 F. 2d 199 (1st Cir., 1986) declared that the National Weather Service was not liable for a faulty weather forecast even though four fishermen died in a terrible storm after relying on the forecast. The court held that weather forecasting is exempt from liability because it is a discretionary function. In other words, it is work that involves interpretation and judgment. The Federal Tort Claims Act 28 U.S.C. §2671et. seq. entitles people to sue the federal government for personal injuries, but not when the government’s work or decision was discretionary.–In state law, the phrase “qualified immunity” is a variation of sovereign immunity that says governments can be sued but not for discretionary functions. Use both “sovereign” and “qualified” as search terms for government immunity. A weather related exception seen in state laws is that highway departments are not immune from liability when they fail to repair potholes or other street damage caused by weather. N.Y. Town Law § 65-a (McKinney 2006); 42 Pa. Cons. Stat. Ann. § 8522(b)(4)&(5) (West 2006).
[vi] 28 USC § 2671, et seq. (2006).
[vii] 28 USC §§ 2672, 2674 (2006).
[viii] Laura Parker, After Katrina, courts flooded by lawsuits, USA Today, Jan. 15, 2006 available at http://usatoday.com/news/nation/2006-01-15-katrina-suits_x.htm.
[ix] Ken Lerner, Governmental Negligence Liability Exposure in Disaster Management, 23 Urb. Law. 333 (1991). This is a clear and detailed journal article telling all of the angles from which to make a negligence claim about a government’s emergency response.
[x] The City of Boston Emergency Shelter Commission has a Web page at http://www.cityofboston.gov/dnd/services.asp.
[xi] The Allegheny County plan is available at http://www.alleghenycounty.us/DHSBasic.aspx?id=27174&terms=severe%20weather. Note that the shelter and the majority of homeless people in that county are in the city of Pittsburgh, Pennsylvania.
[xii] Baltimore’s “Code Blue” program is a collaborative effort between the Health Department and the Department of Housing and Community Development. “Code Blue” Program, available at http://www.baltimorehealth.org/snapshots/Code%20Blue%20snapshot%20v.3.pdf.
[xiii] The Anchorage plan requiring an accessible database of weather shelters is online at http://www.muni.org/Departments/health/Documents/DHHS%20Policy%2010-001.pdf.
[xiv] New York City’s Department of Homeless Services is described at http://www.nyc.gov/html/dhs/html/home/home.shtml. Here is New York’s cold weather procedure document.