that deals with volunteer liability was recently released. It is a very interesting read, but if you don't want to read it all the way through it I noted some very important points below. I see this document as not being just for CERT, but for all volunteer groups to include ARES and RACES. http://www.citizencorps.gov/cert/downloads/pdf/CERT_Liability_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. ________________________________________ 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. ________________________________________ 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. ________________________________________ 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. ________________________________________ 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. ________________________________________ 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. ________________________________________ 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.