Hurricane Sandy and Refusing to Evacuate: Criminal Law and Civil Liability
By Hayes Hunt and Calli Varner
Hurricane Sandy’s death toll continues to rise and over 100 people have lost their lives to Sandy. Some of the dead were residents who decided, despite orders to evacuate, to “ride out” the storm, a voluntary choice. Let’s call these people “Storm Riders.”
When a person chooses not to evacuate in light of mandatory orders to do so, they risk their lives as well as the first responders, who may need to rescue them. Typically, a Storm Rider changes his mind after ignoring the evacuation order and realizes the gravity of the forecast. According to New Jersey Governor, Chris Christie, Storm Riders were “stupid,” “selfish,” and put first responders in danger. The National Weather Service even sent the following warning to those considering not evacuating: “THINK ABOUT THE RESCUE/RECOVERY TEAMS WHO WILL RESCUE YOU IF YOU ARE INJURED OR RECOVER YOUR REMAINS IF YOU DO NOT SURVIVE.”
Despite warnings, however, many residents chose not to leave their homes. Their failure to evacuate raises the potential of both criminal and civil liability.
Some states have passed legislation providing for criminal sanctions for failing to obey an evacuation order. One such state is New York. Under New York law, in the event of a disaster or other like catastrophe, the chief executive, or mayor, can declare a state of emergency and order a mandatory evacuation. See N.Y. Exec. Law § 24(1)(b). The statute also provides that "any person who knowingly violates any local emergency order of a chief executive...is guilty of a class B misdemeanor." Id. § 24(5). A person charged with a class B misdemeanor may face jail-time of up to three months. See N.Y. Penal Law § 70.15(2).
Despite this authority, criminal sanctions for failing to evacuate are often not enforced. For example, during Hurricane Sandy, Mayor Bloomberg assured those refusing to evacuate that they would not face arrest. Not surprisingly, there has never been a criminal prosecution in New York related to this statute. New Jersey has no criminal statute dealing with evacuation orders, however, as the death tolls rise from Hurricane Sandy that may change.
Although one will not be held civilly liable merely for refusing to evacuate, such liability may arise when that person needs to be rescued. Some states, such as North Carolina, have the authority to impose civil fines on those who refuse to heed evacuation orders and require rescue. Pursuant to the Modernize NC Emergency Management Act, “a person who willfully ignores a warning regarding personal safety . . . is civilly liable for the cost of a rescue effort to any governmental agency or nonprofit agency conducting a rescue on the endangered person’s behalf . . . .” N.C. Gen. Stat. § 166A-19.62. Additionally, a person refusing to evacuate may be liable for any injuries sustained by his or her rescuer. Pursuant to the rescue doctrine, a person who negligently endangers a person is liable for injuries sustained by someone who reasonably attempts to rescue that person in danger.
Although a person refusing to evacuate may be civilly liable, the rescuer, on the other hand, will not be subject to liability in an emergency situation. First, by failing to evacuate, the person in danger has assumed the risk of any loss, injury or damage that may occur. He or she, therefore, cannot take any action against the state or emergency responders for failure to rescue or for any damages that may occur as a result of an attempted rescue. Moreover, many states have adopted emergency management acts that give responders immunity in emergency situations.
Under these theories, states and emergency responders are reiterating their message that they will not be held responsible for one’s choice not to evacuate when told to do so. On the contrary, it is the person who refuses to evacuate that may be responsible, both criminally and civilly, for their decisions.
Under any legal scenario, the Storm Riders should be thankful to be alive despite their stupidity.