Judicial Opinions Arising from Emergency Preparedness, Response, and Recovery Activities

Legal Perspectives is aimed at informing healthcare providers, emergency planners, public health practitioners, and other decision makers about important legal issues related to public health and healthcare preparedness and response. The articles describe these potentially challenging topics and conclude with the authors' suggestions for further action. The articles do not provide legal advice. Therefore, those affected by the issues discussed in this column should seek further guidance from legal counsel. Readers may submit topics of interest to the column's editor, Lainie Rutkow, JD, PhD, MPH, at lrutkow@jhu.edu. This article describes and analyzes the body of emergency preparedness, response, and recovery litigation that has arisen since the September 11, 2001, terrorist attacks. Search terms were developed to identify judicial opinions related to emergency preparedness, response, and recovery activities. Using the Thomson Reuters Westlaw legal database, searches were conducted to collect judicial opinions related to disasters that occurred in the United States between September 11, 2001, and December 31, 2015. An electronic form was used for data abstraction. Cases that did not directly involve emergency response, preparedness, or recovery activities were excluded. Data were summarized with descriptive statistics. We identified 215 cases for data abstraction. Many of the cases stemmed from preparedness, response, and recovery activities related to hurricanes (57.7%) and terrorist attacks (16.7%). The most prevalent emergency response activities at issue were disaster mitigation (29.3%), disaster clean-up (21.9%), a defendant's duty to plan (14.4%), evacuation (12.6%), and conditions of incarceration (12.1%). Although it can be anticipated that litigation will arise out of all phases of disaster preparedness, response, and recovery, policymakers can anticipate that the most litigation will result from pre-event mitigation and post-event recovery activities, and allocate resources accordingly.