Here’s the Emergency: Government’s Failure to Warn in an Emergency

On March 22 at 5:19 a.m., Santa Barbara County officials issued emergency phone alerts and calls to evacuate Montecito residents. “Flash flood watch in effect for SB County. Leave now if you are still in evac/burn areas.”

The County sent the alert as soon as rains started pummeling Southern California. They used a federal emergency system that sends mass Amber-Alert style messages to cellphones. They also had issued an evacuation map that clearly defined the areas affected by the evacuation order.

The County clearly learned from its earlier mistakes. In the days before the deadly January 9 mudslides, County officials released conflicting evacuation instructions that left some hard-hit neighborhoods out of the warning zone.

The County Sheriff’s Office posted a list of voluntary and mandatory evacuation areas on Facebook and linked to the list from its website. But a separate map on the County’s main website included a larger evacuation zone that comprised dozens of homes not covered by the sheriff’s list.

At least a dozen of the people killed in the January 9 mudslides lived in areas that were covered by the County’s evacuation map but not included in the sheriff’s list.

Santa Barbara County emergency officials acknowledged the discrepancy. “Regrettably, however, also 30 hours prior to the storm’s arrival, I approved a press release and Facebook post that had discrepancies with the western boundary of our intended voluntary evacuation area,” Robert Lewin, San Barbara County’s director of the Office of Emergency Management, said in a statement.

To make matters worse, the County did not send out emergency alerts to cellphones until 3:50 am on January 9 after the mudslides had already begun. By then, it was too late for residents to flee.

State laws could protect the County for its admitted failure to warn residents. Then again, they might not. And in a future column, I will address a different theory upon which residents might recover from the County (and others) for wrongful death.

Two laws address potential liability for a local government when ordering an evacuation. They are the Tort Claims Act and the Emergency Services Act. The Tort Claims Act was addressed in a prior article in this series (Volume 24, Issue 7: “Who Says the King Can Do No Wrong? Finding More Ways to Recover Losses.”)

For more than two centuries of our nation’s history, sovereign immunity protected the federal and state governments and their employees from tort lawsuits. As our nation evolved, so did our attitude toward holding the government more accountable for its misdeeds. In 1963, the California Legislature adopted the Tort Claims Act governing suits against a public entity.

The Tort Claims Act carved out an exception to sovereign immunity in order to allow suits in a limited number of actions. The Tort Claims Act also includes a long list of immunities that protect the sovereign State, its employees, and other public entities from being sued.

The broadest immunity is for the discretionary acts and omissions of public employees. The availability of immunity turns on whether the public employee’s act or omission was an exercise of discretion at the planning rather than operational level of governmental decision-making.

For example, there would be no liability for deciding to adopt an evacuation plan, which is considered to be a “discretionary duty,” while liability may exist for negligently implementing the evacuation plan, which is considered to be a “ministerial duty.”

As always, there’s a catch. Another law, the Emergency Services Act, gives local governments the authority to provide emergency services and order evacuations, but it also expands the immunities available under the Tort Claims Act. The Emergency Services Act grants immunity for both discretionary and ministerial duties.

Under the Act, the local government only has to declare a “state of local emergency” to be protected by the Emergency Services Act’s broad immunities.

Here, Santa Barbara County proclaimed a local emergency on January 8 at 11:30 am, 30 minutes before issuing its evacuation order at 12 p.m. Thus, the County can claim that it is immune from legal liability under the Emergency Services Act for its conflicting evacuation warnings and delayed emergency alerts.

It will be interesting to see if someone argues that the County delayed warning residents of imminent danger so that it could first issue a self-serving declaration of a state of emergency. Was the declaration a mere contrivance to protect the County from liability for failing to timely warn residents in the hours before the state of emergency was actually declared?

Half of the sheriff’s job is to chase criminals. The other half is to be prepared for disasters – earthquake, fire, and flooding high on the list. If there are no consequences for failing to do one’s job, this creates what economists and public policy wonks call a moral hazard. Taking risks because someone else bears the costs of those risks.

If the County failed to do its job and lives were lost, is there a legal remedy? The courts may have to decide this issue, depending on what Montecito residents and their lawyers find out in their investigation. Over the longer term, legislative reforms may be necessary to ensure that residents can recover compensation for a local government’s inadequate or negligent emergency response. And then there’s the ballot box.

This is the seventh in a series of MJ articles about the law and the Montecito mudslides. You can read the first six articles on montecitojournal.net, volume 24, issues 4-10 or email: blum@blumcollins.com.