(This is the first of two articles based on David Bruce’s presentation to the 2018 Annual Meeting of the League of California Cities. Mr. Bruce is the co-founding partner of Savitt Bruce & Willey LLP and served as a Senior Assistant City Attorney for the City of Seattle.)
Landslides, floods, wildfires, earthquakes, volcanoes, hurricanes, tornadoes, tsunamis. Natural disasters happen—and by all accounts are occurring more frequently and causing devastation and the loss of human life and property. The National Oceanic and Atmospheric Administration’s National Centers for Environmental Information (the “NCEI”; see https://www.climate.gov/news-features/blogs/beyond-data/2017-us-billion-dollar-weather-and-climate-disasters-historic-year) called 2017 “a historic year of weather and climate disasters” that caused a record amount of damage at $306.2 billion.
In the wake of natural disaster, citizens turn to their government—local, state and federal—to fix problems and get things back into working order. In reality, though, municipal liability for damages caused by nature is much more limited than commonly supposed.
Part of this misconception arises because responsible governments, and municipalities in particular, often have an irresistible tendency to do or at least say something after a natural disaster to respond to the fears and concerns of their residents. While this is an understandable and human response, unfortunately it can also expose municipalities to legal liability. For such governing bodies, then, an important problem arises: how to be responsive in, during, and after a natural disaster without expanding their own liability.
Below is an overview of the law on this subject and some practical advice for government officials handling these difficult issues.
Governmental Immunity in Natural Disasters
By and large, municipalities are immune from most claims for damage caused by natural disasters. This immunity arises from several basic legal concepts that are applicable in most jurisdictions.
After natural disasters, the press or public often ask, “Why did the government let them build there?” or “Shouldn’t the government not have allowed this?” Fortunately for municipalities, negligent permitting is not an actionable claim in most jurisdictions.
There are exceptions. If a public entity has a mandatory duty to protect the public against a specific injury, the government can be held liable for not discharging that duty. In addition, Washington courts will entertain a negligent-permitting claim if the plaintiff can show an exception to immunity, such as the “special relationship” exception, which requires a direct contact between the public official and plaintiff and express assurances by the public official that give rise to justifiable reliance by the plaintiff.[i]
Government policy decisions are often challenged in the wake of natural disaster. A citizen may argue zoning should have been more restrictive or that the city should have taken some kind of precautionary measure such as building a dam to prevent the problem. When a municipality’s policy is at issue, the doctrine of discretionary immunity comes into play.
Discretionary immunity is built into many state codes, such as the California Emergency Services Act, which provides:
The state or its political subdivisions shall not be liable for any claim based upon the exercise or performance, or the failure to exercise or perform, a discretionary function or duty on the part of a state or local agency or any employee . . . in carrying out the provisions of this chapter.[ii]
This type of immunity is generally broad and may apply to exigent policy decisions made during a fast-moving emergency. Discretionary immunity generally applies to actions and inactions in an emergency when the municipality can show a state of emergency existed, was declared, and that its decisions were reasonable and focused on protecting the public.
Discretionary immunity was implicated by state decisions made on the eve of the Mt. St. Helens eruption in 1980, which killed more than 50 people and caused tens of millions of dollars in damages. Washington Governor Dixy Lee Ray had received information from geologists about the impending catastrophic event and imposed a “red zone” around the volcano. The red zone both (1) impacted business owners in that area by limiting their access and that of their customers because of the expansiveness of the red zone[iii] and (2) also failed to prevent deaths[iv] because, arguably, the red zone wasn’t large enough.
Although representatives of both aggrieved groups sued, neither were successful because the courts deferred to the government’s discretionary immunity, reasoning that municipalities should not be held liable for damages for making policy decisions about the size of the red zone.
When a bridge collapses during a natural disaster, can those injured sue the city? Ordinary negligence rules apply in such cases; typically, if the government owns the failed infrastructure, the government also owns the liability.
Still, at least in some jurisdictions, there may be special statutory immunity even in these situations. For instance, the California Government Code in some circumstances grants immunity to public agencies when third parties are injured because of defective designs in public works.[v] But municipalities can lose this protection if they cannot present evidence of discretionary approval of the design in question. [vi]
Failure to Warn
Generally speaking, the government is not obliged to warn of impending natural disaster. The general rule is immunity, but there is a potential, and somewhat paradoxical, exception involving the “good Samaritan” concept, rooted in the common law, that although there is no general duty to rescue, one who attempts rescue must exercise reasonable care in doing so or face potential liability for damages.[vii]
Although this principle isn’t applied broadly to governments and natural disasters, it’s not unheard of. The deadly 2014 landslide in Oso, Washington is one example. The local county government warned residents about a potential danger at a community meeting and was later sued on the theory that the warning wasn’t good enough because it lulled citizens into believing the government was going to protect them, and/or that it was taking the responsibility to provide a fully effective warning.[viii]
In other words, by trying to do something helpful, the county opened itself up to legal risk. The county won in the end, but only after years of litigation. Accordingly, even though municipal immunity is strong, it is critical to be careful about the issuance of warnings, and to note the limitations of any warnings, because action to help sometimes can expose you to more liability.
Takeaways Regarding Potential Liability
As the examples above illustrate, the law provides certain protections to the government in this area. Government entities generally have important legal defenses in cases involving natural disasters and disaster relief.
However—and this is critically important—the more the government gets involved, whether through words or actions, the more likely it is to create the basis for legal claims, even where liability may not have existed otherwise. With that in mind, there are some tangible ways governments can minimize liability when responding to natural disasters.
We will address those steps in a second, subsequent post to this blog.
[i] Howe v. Douglas County, 143 Wn.2d 183 (2002).
[ii] Cal. Gov. Code § 8655.
[v] Cal. Gov. Code § 830.6.
[vi] Martinez v. County of Ventura, 225 Cal. App. 4th 364 (2014).
[vii] See Restatement (Third) of Torts §___.