*** Potential for Being Sued for SAR Operations *** Date: Mon, 01 Sep 1997 20:26:34 -0400 From: Larry Jacobson Subject: Potential for Being Sued for SAR Operations      Getting sued and losing a suit are two different things. Taking off my NASAR hat and putting on my barister's wig for a moment... [sorry, but this turned into sort of a long post. You might want to press delete and go on to a shorter post!] A short review of legal principles might help us all to put some of these "failure to rescue" and "pay for rescue" into context.            A bad lawyer can cook up a suit for almost anything. But frivilous suits generally don't get far. They are filed with an eye towards intimidating the defendant into a quick settlement. Actually losing a lawsuit for 'failure to rescue' is a very very remote proposition.  Here's some reasons why:      First Point: When is there a Duty to rescue? 1.  In any English-speaking country, absent a pre-existing contracted duty, there is no general duty to rescue.  (That's not because the people speak English, but because their law is based on the English Common law which never requires a gratuitous rescue.  Don't try this in France or Italy where the law is based in the Roman Code).   2.  But if one commences a rescue, either because he/she has a pre-existing duty to rescue this victim (i.e., part of a paid job or is a parent or some other special relationship), or because he/she gratuitously thinks it's a nice thing to do, he/she must continue the rescue to the best of his/her ability... 3. ...until a person of equal or better abilities takes over ('undertakes' in legaleze) to continue the rescue until our victim is either brought to safety or, ...dies, making further efforts useless.        Second Point: What, then, can you theoretically be sued for? A. Contract theory. You agreed to do something and failed to do what you promised. This could apply to an insurance company's promises to provide rescue. Very remote for any other *failure* to rescue even for a sworn officer. Usually the remote chance is extinguished by a combination of a short statute of limitations and legislation that expressly bars these kinds of frivilous suits against "the king's servants".   B. Tort theory. 1) Intentional torts: In the process of doing the rescue you wrongfully touched the victim (battery), falsely imprisoned the victim as in restraint, or any number of other potential but remote theories. We don't even reach these torts if we don't reach the victim. They come into play if we find him and then botch the job.  -OR- 2) the unintentional (negligence) tort. It is negligence where there is some real potential for a suit for failure to act in a reasonable and prudent manner. But it's not an easy suit for a plaintiff to win.      Third Point:  Winning a negligence suit. To win a negligence suit the plaintiff has to prove four things (elements). If he fails to prove just one of them the defendant (rescuer) wins. 1. The rescuer had an actual duty to this plaintiff. The existance of that duty is a function of local standards and practice. The quality of that duty is reasonable behavior and care by the rescuer, given the circumstances, towards this plaintiff/victim. ...A duty is not easy to prove even in the case of a defendant police or fire department. Very remote in the case of a volunteer team who makes a gratuitious attempt to find the lost victim.     2. The rescuer failed to perform the duty. ...The performance is the responsible way the search/rescue is conducted, not whether the mission was a success. Failure to perform means he didn't perform according to reasonable and prudent SAR standards (i.e. SAR Tech standards or local protocols). As a practical matter, to prove up this point our rescuer would have to be grossly incompetent, displayed reckless conduct, or done something criminal in the process. Borderline stupidity doesn't approach the threshold of negligent conduct.     3. There must be actual injury to the plaintiff and that injury must have been proximately caused (the adjudicated legal cause) by the rescuer, not merely be the cause in fact. ...Remember, our plaintiff is already lost, injured and perhaps in bad shape. And that condition was caused by some one or something other than our rescuer/hero. In practice it's real difficult to show that the rescuer further injured the plaintiff because the legal cause of most additonal injuries that were caused in fact by our hero is going to be chalked up to the person who created the first injury which put our victim in the initial need of rescue. (This is the difference between proximate cause and cause in fact.) This is a legal fiction that works to benefit our hero.        4. The plaintiff's actual provable injury must be able to be settled with a money payment of some sort ('damages'). If it can't be settled with money the case ends up in a court of equity and we end up with an entirely different up-hill battle for the plaintiff to argue in a bench trial without the benefit of a bleeding heart jury.       In summary, it is very difficult to make the negative arguments (what the other guy didn't do) necessary to prove a 'failure to rescue'. The occasional celebrated suit contains often unreported elements of unbelievable and unforgivable ineptitude by a rescuer. And the common thread in these cases is the would-be hero gets in way over his head. Then he's too proud to ask for help from experienced SAR people who really know what they are doing.       SAR people who conduct good responsible SAR operations rarely, if ever, get sued because plaintiff's attorneys generally take tort suits on a contingency basis and they know there's not much chance of winning. 1/3 of nothing is nothing.       Respectfully, and sorry for the length of this post... Larry Jacobson NASAR Date: Thu, 20 Nov 1997 09:29:16 -0500 From: "Larry Jacobson" To: Subject: Re: Suing and Standards Tom Moyer wrote, "Larry Jacobsen - maybe you can answer these questions. What happens when there are two competing standards out there? Could we be legally held to a standard just because the NFPA says that they think it should apply to mountain rescue teams? What happens if one follows the ASTM standards but not the NFPA standards? What becomes legally "reasonable and prudent"? Mr. Moyer, As you know, there are no short legal explanations. Please bear with me through this. I have been following the standards discussion mainly because I have something of a vested interest in how NASAR's own SAR Tech standards are being accepted by the public. But having made that full disclosure, lets look at where the existence of standards fit into the legal scheme of things. I assume SAR teams are primarily interested in procedural standards for the purpose of trying to avoid tort liability brought on by injuries to rescuees due to failed equipment and/or inadequate procedure. A secondary interest is probably as a guideline to purchase equipment to meet a particular manufacturing standard. >From what I've heard so far in the list discussion there is a fundamental misunderstanding regarding the role of standards in a typical lawsuit. There seems to be an assumption that if I follow a particular accepted standard, by definition I have done right and therefore can't be sued for doing wrong. Therefore if I can just choose the correct standard to follow and stick to it I am bullet proof. That's like saying if I study the rules of the road and follow every one of them meticulously I can't be sued if I occasionally run down a pedestrian. Obviously mere compliance to the public law (i.e., traffic code) or private law (i.e. industry standards) makes nobody immune from suit for bad results caused by either accident/mistake (intentional torts) or negligence (unintentional torts). What? Even though I have obeyed all the laws and meticulously followed every known industry standard and intended to do good and am a poor volunteer I can still be sued? 'Fraid so. If somebody was injured due either to your negligence or something you did intentionally (but with unintended results) and you could end up in court. The good news is that for all the concern about being sued, SAR people are seldom sued. More good news is that on those rare occasions when they are sued it isn't for an intentional tort. The best news is that having followed the laws and followed the standards and being unpaid and uncompensated, the odds are heavy in your favor that you will not be found liable in a negligence suit. Here's why: For a plaintiff (the injured guy) to prevail in a negligence suit against a defendant (our hapless SAR guy), the plaintiff has to prove by preponderance of the evidence (that means "more likely than not") four things (elements of the tort). They are: 1. DUTY. This defendant had a duty to this plaintiff. Obviously if our SAR guy assumed the duty to rescue the defendant when he could have been sitting home drinking beer and watching football, the SAR guy created a duty to rescue once he began his rescue. The rise of a duty requires and defendant to conform to a *reasonable* standard of conduct and to not take *unreasonable* risks at the expense of this plaintiff. 2. BREECH. This defendant failed (breeched) in his duty to this plaintiff. Since the duty is limited to what is *reasonable*, the breach of the duty is also circumscribed by what is *reasonable*. So, the question is what is *reasonable*? The plaintiff says one thing and the defendant says another. Big squabble in the courtroom trying to pin down for the jury exactly what an objective ***reasonable and prudent man*** woulda - shoulda - coulda done in the specific situation that is the subject of this suit. 3. PROXIMATE CAUSE. This defendant's failure is the proximate cause (that is, the legal cause ..not merely cause in fact) of the plaintiff's injury. For example, if the defendant was already injured when the defendant found him, and in the process of getting him out of his predicament the rescuer defendant injures him a little more, the additional injury in fact was caused by the defendant, however, the additional injury probably won't be chalked up to the defendant as a matter of law. 4. DAMAGES. The defendant has clearly suffered damages. He's got the hospital bill, the doctor's bill, the mortician's bill. Hard to argue against this one unless you can show the bills are actually for the auto accident that happened the month before. Obviously this whole courtroom debate is going to focus on what is *reasonable*. And here's where the public law and private laws (aka industry standards) come into the debate. As a matter of definition, reasonable and prudent men (or women) don't break the public law. Those who do break the law are presumed to be negiligent. [Please note that you aren't necessarily protected by obeying the jot and tittle of the law but you are condemned by violating the law.] Assuming our SAR guy defendent has complied with the public laws, the next question is to ask is there some other objective standard that might help this jury comprised of hairdressers, ministers, auto mechanics and school teachers to determine whether this defendant acted *reasonably*. Heck, they've never been on a rescue. How can they know what is reasonable? But in the absence of some objective industry standard to help them they are going to go into that jury room and decide what was reasonable by gosh and by golly. So let's help them! A good defense attorney is going to introduce the jury to the written operational standards that are hopefully widely accepted as the way to do things in this industry. If there are six accepted standards out there he is going to argue the one that best serves his client's case. The plaintiff is going to argue the one that best serves his client's case. And therefore there will be a debate about which standard is appropriate in this case. The use of the industry standards has at least brought the jury into the coral of written standards and in from the open range of "by gosh and by golly". The lawyers are going to tell the jury that the best and the brightest got their heads and collective experience together and wrote down the guidelines of how this industry behaves and conducts its business. And finally, in the closing words of the trial, the defense attorney is going to say in his closing arguement, "Ladies and gentlemen of the jury, I submit to you that this poor hapless volunteer search and rescue do gooder did everything anyone could have expected him to do in this situation. You have read THE STANDARDS. It is clear that he not only adhered to the standards but he even when beyond the standard to protect the plaintiff.. (blah blah blah). It is unfortunate that the plaintiff was injured and we feel real bad about that. However, my guy acted appropriately as measured by very objective standards and therefore the plaintiff can not sustain his burden to prove the defendant failed to do what was reasonably expected and therefore my guy should be found not liable." And so the jury receives the judges instructions and trundles off to the jury room to decide the facts of the case and whether the defendant acted reasonably given those facts. The key idea here is that the standards are merely evidence of what may have been reasonable and prudent behavior by this defendant. The jury doesn't have to accept any of the standards as the measuring stick. The jury in its wisdom might very well say even though this guy obeyed all the laws, and followed all the standards, and then some, he still acted unreasonably under the circumstances of this case. ....BUT more likely, unless the facts of the case are outrageous, the jury is going to allow itself to accept an industry standard as the measuring stick. In deliberations they are going to debate whether this defendant acted according to what *his peers* in the industry said he should do. And, just like my earlier example of the public laws (a few paragraphs above), if he has not followed those standards the jury is probably going to find him negligent. On the other hand, even if he has followed those standards the jury could still find him negligent, but it is not likely. So that, in a rather long winded nutshell, is how it works. The real standard is what is reasonable and prudent. Industry standards are merely a measuring sticks that the jury may want to consider when they decide whether the defendant acted in a reasonable and prudent fashion. I hope this is helpful. Respectfully submitted, Larry Jacobson Severna Park, Maryland ----------------------