Part Two (read Part One here)
(This is the second 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.)
As discussed in the prior post in this series, although Government entities generally have important legal defenses in cases involving natural disasters and disaster relief, the more the government gets involved, the more likely it is to create the basis for legal claims where none may have existed otherwise. With this in mind, following are some tangible steps governments can take to minimize liability regarding natural disaster preparation and relief.
First, it is important to recognize that every natural disaster is different, so giving blanket recommendations and advice is impossible. Many factors will impact governmental decisions in these situations, often beginning with the question of what you should tell the community and when.
In this situation, your answer will depend on many factors, including whether there is ongoing risk and whether property owners and citizens are threatened by impending natural disaster. You also will have to assess whether you could be sued for remaining silent—and, moreover, whether silence is really good government. On the other hand, if you give warnings that later prove inadequate, you may be subject to failure-to-warn claims. And if you give warnings that later prove unwarranted, you might damage the property values or impact the ability of some property owners to obtain a mortgage.
Post-disaster, you are sure to face other disaster-related issues, such as if and when to remove “red tags” from properties that have been designated as hazardous. Moreover, you will likely begin receiving applications for building permits or subdivision approvals in or near the affected areas. This process can be touchy, because you need to balance public safety against property rights.
Other issues that could arise include the following:
- Pressure to create a stricter overall regulatory framework.
- Demands to change zoning regulations.
- Requests to construct public works to protect the public from risk.
One of the biggest issues, though, is risk-mapping, which raises several of the concerns mentioned above. Take, for example, the risk study and resulting hazard map the City of Seattle generated after the apocalyptic rains and landslides of the winter of 1996-1997. This responsive government report is full of useful information, and the city rightfully made it available to the public so everyone—including private citizens—could use its findings in decision-making.
Still, as helpful as this type of risk-mapping is, looming over the city is the real possibility that it could later be used to argue that the government should be held liable for failing to do more to warn about or prevent a natural disaster.
Seattle’s risk-mapping illustrates the fundamental challenge in making decisions concerning natural disasters as a governmental entity, and why it’s critical to achieve an appropriate balance between practicing good government and managing litigation risks.
Practically speaking, as you weigh these principles, it’s important to involve your city attorney and possibly even outside litigation counsel to make sure you’re making policy decisions with due regard for litigation risk.
Other steps you can take to minimize litigation risk while still practicing good government include:
Clear guidance on messaging, and clear guidelines on who is authorized to speak to the press and the public, is the best way to avoid mismanaging communications. This can be difficult in situations that include elected officials and many other government employees. Seemingly innocuous statements, such as “We saw this coming” or “Don’t worry, we’ve got this handled,” could make matters complicated should a lawsuit arise.
Talking to officials and executives about this concern about their communications can go a long way in making sure mixed messages don’t expand liability for your municipality. If at all possible, form a small team whose members have clear roles concerning communications, and choose a point person to handle all messages about the disaster and risks.
As for the message, generally speaking, the government will want to make public the information it has about the risk of natural disaster. That’s the morally right thing to do and will help you sleep at night. Also, from a risk-management perspective, the consequences of not sharing that information are simply unthinkable. The worst-case scenario from a liability perspective would be for you to keep information of a natural disaster quiet, have the disaster happen with great devastation, and then have it come out that the government sat on what could have been helpful and potentially life- and property-saving information.
That said, governments still should be careful about the manner in which they share information. The best you can do is to frame and package your communication about the risk so that it is clear that even though the government is providing this information, it is expressly disclaiming any duty to warn. Moreover, you should be clear that the government is not undertaking to prevent, or even reduce, the risk of future disaster and that private citizens still need to protect themselves and make their own decisions. This lesson comes directly from the Oso landslide example above.
The Sheehan Rule
Sean Sheehan was responsible for defending claims against the City of Seattle for many years. One rule that emerged from his lengthy service is quite simple: “Touch it, and you own it.” Put otherwise, municipalities must consider carefully the long-term costs and risks associated with public works solutions to natural problems. Building or improving infrastructure may respond to public clamor to “do something” but may only mean more liability years or decades later.
Just like everyone else, cities are liable if something they own doesn’t work correctly or breaks and injures someone. This means, for example, that if a city builds a dam to prevent the next flood, its work, and its responsibility, has only begun. That dam won’t magically make everything secure forever; the city must be sure it’s maintained properly, and even then the existing structure may not be enough to contain future floods. This is especially true as climate change continues to impact weather patterns. If dam maintenance fails or the disaster exceeds the design, lawsuits could follow.
Although the pressure to build something to solve a problem may be inexorable, lawyers still should remind government officials of the Sheehan Rule as they deliberate.
Overall, a straightforward plan in approaching these difficult decisions may ideally look something like this:
- Gather the information about the risks around which you need to make good decisions.
- Share information with the public, but do so with care.
- Take pains, with input from counsel, to be clear that the government (a) is not undertaking a duty to warn, and (b) is not taking any responsibility for preventing risks. Do not promise more than you can deliver.
While you’re going through this process, something else to keep in mind is the paper trail. As always with government work, you should be careful with documents, especially regarding their preservation. In the Oso landslide litigation, the State of Washington ended up settling for tens of millions of dollars because some of their expert witnesses allegedly failed to maintain communications, and the plaintiffs convinced the judge that this lack of preservation of documents amounted to sanctionable destruction of evidence.[i]
Even if documents innocently go missing, if it looks like a cover-up, it can completely change the course of a lawsuit or any other public dispute. Aside from affecting legal processes, an apparent cover-up also can adversely affect public opinion, which can have far-reaching and long-term effects on an administration’s reputation and effectiveness.
Remember, too, that if you must communicate about something you are concerned could create legal risk, there’s no rule that says it must be done in an email or text. Conversations can still occur over the phone or in person.
Finally, an overarching concept to keep in mind as governments increasingly face difficult decisions before, during, and after natural disasters: take your time. There is always tremendous pressure to react immediately, but resist the temptation if possible. Of course, there are times when immediate action is necessary, but the great majority of decisions can wait at least a few hours, if not a day. Take time to gather advice, to wordsmith your communications, and to think about unanticipated consequences of the various options.
Avoiding liability may not be entirely possible for governments dealing with natural disasters, but the basic legal principles and general decision-making guidelines discussed here can help ensure that you aren’t actively making your situation worse.