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Interesting FEMA Document....

Discussion in 'Discussions, Opinions & Editorials' started by KS4VT, Jul 19, 2012.

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  1. KS4VT

    KS4VT Ham Member

    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.
     
  2. KY5U

    KY5U Ham Member

    Thanks for the good read.
     
  3. KC8VWM

    KC8VWM Ham Member

    Volunteering has now become nothing but a tangled exercise in legal liability issues including, but not limited to, filing and shuffling around large volumes of triplicate paper forms/ documentation to cover your butt, printing large volumes of paper handouts and booklets for volunteers to study, memorize and test as a way of "volunteering."

    Volunteering these days means you have been instructed on a various array of legal definitions, learned legal mumbo jumbo just like they learn in law school, it means you have been instructed in subjects such as OSHA and EPA regulations. The idea such as you have been trained and certified in something. For example, you hold various certifications and degrees in the vocation of "volunteering." Things such as Hazmat, you have graduated FEMA school etc etc etc..

    Volunteering now officially means you have successfully demonstrated you have spent more actual time learning something inside a classroom, than the idea of actually spending any time volunteering anything out in the real world for anyone lol.

    Volunteering now means you have been subjected to fingerprinting activities like a common criminal, had your photograph taken like you just robbed a convenience store, and it means you have been subjected to a background check investigation just like you are applying for a desk job at the FBI.

    No thanks.
     
  4. W9PSK

    W9PSK Ham Member

    Good grief, get over it already. My goodness. You act as if the sky is falling because people are actually being trained in proper procedures during an emergency. I suppose you'd rather that any Tom, Dick, or Harry with a truck, radio, and magnetic sign that says Emergency Helper be allowed into disaster areas. The standards since 9/11 have been raised, and that's a good thing. Why you would whine about being properly trained is beyond me.
     
  5. KC8VWM

    KC8VWM Ham Member

    ...Is that supposed to be "volunteering?"

    After all, no one is expecting a volunteer to function as a trained professional are they?

    Nothing to get over really, already have the T shirt, extensive training etc.
     
  6. K5FH

    K5FH Ham Member

    Police and Sheriff's Departments certainly expect it of their reserve officers and reserve deputies.
     
  7. KA5S

    KA5S Subscriber

    Sonoma County provided ACS volunteers liability coverage from the called up at location to designated site(s) and back home, by the shortest possible route. That meant, if it was a dirt track on the side of a mountain, any accident on the (longer) highway below it might not be covered.

    FWIW.

    Cortland
    KA5S
     
  8. W9PSK

    W9PSK Ham Member

    I have volunteered for a few things in my time, and have had to have training to do some of them. Being a volunteer doesn't mean you should just be able to do whatever it is you are volunteering for without receiving training. In fact, I am currently a weather spotter and had to get training for it. No problem whatsoever. You act as if volunteering and training are should be mutually exclusive.
     
  9. KJ4VTH

    KJ4VTH Subscriber

    I don't mind the training. It's the $100k umbrella insurance requirement that bothers me.
     
  10. AE1PT

    AE1PT Ham Member

    This thread smells awfully familiar... :cool:

    I solved the volunteer problem a couple years ago. If an organization wants more information than how to contact me--or has forms dealing with liability, background checks, and anything other than an orientation, I go find something else to occupy my time.
     
  11. KS4VT

    KS4VT Ham Member

    Just a $100K?? That would buy you much, especially your own attorney if the insurance company doesn't provide one. I carry 1 Million umbrella at around $450.00 per year.
    The problem though is that I had to increase my auto insurance to 100/300, and costs additional dollars.
     
  12. W5DQ

    W5DQ Ham Member

    But as hams, we usually AREN'T volunteeering to be reserve officers or reserve deputies. We're volunteering to help with communications .... PERIOD. Anything else and it falls outside what should be expected of an amateur radio operator volunteering and falls into the 'general use citizenry' volunteering.

    No thanks. If they want me to pass some traffic for them using ham radio, I know how to do that and will be happy to help but I'm not putting on a 'whacker uniform' (flourescent vest and god knows whatever) and a string of HTs on my Batman utility belt to go play 'important person of the hour'. I have been an ARES volunteer and have had RACES training. I have also many other courses for EMCOMM training which we we're required to take. With all this new and everchanging liability issues, I've decided I really don't want to play in their sandbox anymore and have bowed out gracefully.

    I'll just take care of my own, thank you.

    W5DQ
     
  13. KS4VT

    KS4VT Ham Member

    Typo...Meant to say "wouldn't buy you much"
     
  14. N0SYA

    N0SYA Ham Member

  15. AD0DQ

    AD0DQ Platinum Subscriber

    I would be very careful about expecting that a FEMA publication would be an accurate expression of the law of the fifty states on liability in times of disaster. While there are certain federal laws that limit liability for federal workers, the role of volunteers operating without government sponsorship (in other words, not under the auspices of a recognized federal or state emergency management agency) would be governed by state law. In Missouri there is no common law duty to rescue. If you see someone choking on a hot dog (or trapped under a roof after a tornado) you are privileged not to take any action at all. The law does not require you to.

    However, if you set about to rescue the person you must do so in a reasonable manner. The Heimlich maneuver: OK. The Heimlich Punch in The Gut: not so much. Similarly, if you go to pull the roof off the guy in the rubble and squash him in the process, you could very well have legal liability for negligence. Law is fact and case specific. Most states have Good Samaritan statutes that may or may not apply. In short, your liability for actions during rescues is something you should investigate before joining a volunteer group, and should be understood well. The safest course is to always make sure that your policy of insurance carried on your home or business covers you for random acts of kindness that go bad.

    I am a Missouri lawyer. I am not licensed in other states. This is not legal advice. If you need legal advice you should see a lawyer in your state. Your mileage may vary; some restrictions do apply.

    A. L. DeWitt
     
  16. K4KWH

    K4KWH Ham Member

    I spent nearly 50 years in a volunteer agency until they started "lawyering up" and putting in so many restrictions. They wanted you to train, train, train, train, take this FEMA course, and pass THAT internal test. THEN they had a "pledge" that made YOU responsible for the equipment that they forced us to use (NTIA certification). If someone STOLE the radio, they wanted ME to PAY for it. I said, "Unk-uhnn!" NO THANKS! I'm goin' fishin'!" I did my part in "whackering". :D
     
  17. N0AZZ

    N0AZZ Ham Member

    It was all this kind of BS that made all of the "Real" people involved as a emergency volunteer get out and then we saw what has happened now all we have "Whacker's" and save the world types.

    There main activity seems to be bike races and days in the park. Oh yes in a real emergency they did have them pick up tree limbs and give out water.
     
  18. N6MEJ

    N6MEJ Ham Member

    Hmmm, most of them carry guns and can shoot people....or be shot themselves. Seems extensive training is in order for this type volunteer work.

    I don't know that operating comms is nearly as life threatening and any training ought to be scaled accordingly.

    I was once given a document to sign which would have put me in the place of accepting full liability (both criminal and civil), for performing activities for the government. When I questioned accepting that liability I found that senior and executive level managers within the organization were covered by an umbrella insurance policy and legal representation. I on the other hand would not be. I didn't sign the document. That was for a professional assignment....I can't imagine such thing for a community service volunteer position.
     
  19. AD7N

    AD7N Ham Member

    If you don't like the volunteer "opportunity" and all the trappings that come with it, why even give a rat's ass about it?

    If you don't like it don't do it. Simple as that. No two ways about it. It's your time they want, and if you don't like it don't sign up.
    yH3ad.jpg
    P.S.
    I give myself a complimentary, pre-emptive QRZ Thread Cop designator. :D
    I agree you have your right to free speech, just as I do to mine. But I see this as a real non-issue.
     
    Last edited: Jul 21, 2012
  20. KS4VT

    KS4VT Ham Member

    The issue is that a lot are unaware of all of the civil liabilities of being a volunteer and all that comes with it. Typically everyone is always so hung up on Liability Insurance, but that only a small portion and only protects the served agency if someone in the volunteer group should do something wrong.

    Not too long ago the other functions of liability to the volunteer as an individual was brought to my attention. I researched this from many angles, asked a lot of questions from those in the know and licensed, and when this FEMA document came out it really hit home and agreed with what I discovered prior which is why I posted it. In addition, I was advised by a local ARRL appointee that there are changes that have occurred with the ARRL Club insurance with regards to this topic, but I'm not at liberty to disclose. It would be best for individual ARES organizations that utilize the ARRL Club Insurance to contact the ARRL or their carrier directly to research the changes to the policy upon renewal.

    This part in the FEMA document agreed with what my research disclosed:

    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.


    Just remove CERT and put in ARES and there are a lot of similarities.

    In short, I recently stepped down from my amateur emergency services position's that I held for the last 10 years in order to protect my personal assets, but at the same time I cannot turn my back on those that might not be aware or are in an organization that does not protect its volunteers. I do give a rat's ass about it even though I'm not going to be a part of it cause I can't with an ounce of decency keep this to myself, watch someone make a mistake, and then possibly see all of their personal assets be taken away in a civil lawsuit.

     
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