Preface - This blog article was contributed by Edward Robson as a follow-on from the Panel Discussion on "Liability & Reliability of Crowdsourced & Volunteered Information for Disaster Management" held August 30, 2011, co-hosted by the National Alliance for Public Safety GIS Foundation and the Woodrow Wilson International Center for Scholars's Science & Technology Innovation Program. A summary & recal from this event is provided at - http://www.napsgfoundation.org/blog/news/116-cspan
Volunteer and technical communities organize to create and build tools that collect, search and organize data coming from crisis areas. These crowdsourcing groups have effectively responded to a variety of disasters, including the Haitian and Chilean earthquakes, the Japanese tsunami and the gulf oil spill.
At the same time, these groups raise liability questions that courts have yet to address. Volunteer and technical communicates should take proactive steps to reduce this liability. If not properly managed, tort liability has the potential to destroy the model before it realizes its potential.
The law does not require a person to rescue another, even if the person can do so safely. Uncomfortable with this general rule, courts have narrowed it with several exceptions. A duty to rescue arises when: 1) a person undertakes rescue; 2) where a person’s conduct puts another in danger; and 3) when a special relationship exists between the rescuer and the victim.
Thus, a crowdsourced response group will not be held liable for failing to aid a disaster victim unless it falls into one of these three exceptions. Although no court appears to have addressed the issue, crowdsourced response groups could potentially fit into one or more of the above exceptions where a duty and the corresponding potential for liability exists.
First, a volunteer group that undertakes rescue opens itself to liability. In the context of crowdsourced disaster response, it is unclear what it means to undertake rescue. Courts reason that when someone undertakes rescue, it decreases the chance others will do the same. Thus, the person attempting rescue must act reasonably to ensure the victim is not worse off. One example would be a crowdsourced response group receiving a call for assistance via social-media and telling the victim help is on the way. If the group fails to send help, it or its members may face liability.
Second, a duty to rescue arises when a person puts another in danger. Courts reason that one who creates danger should attempt to mitigate harm. In the context of crowdsourced disaster response, duty and corresponding liability may arise if the group misled people resulting in injury. For example, a crowdsourced group broadcasting information to a disaster site that results in a stampede could create liability. Moreover, a group that provides incorrect or outdated information regarding the location of a victim that results in responder injury may also give rise to liability.
Third, a duty to rescue exists when there is a special relationship between parties. These relationships can include common carrier-passenger, hotel operator-guest, business-customer, parent-child, and teacher-student. More recently, courts have recognized special relationships in a variety of contexts, emphasizing the dependence of one party on the other. In crowdsourced disaster response, a special relationship potentially arises between the crowdsourced group and anyone relying on the information, such as aid workers or victims.
Although crowdsourced disaster response groups are a recent phenomenon, it is not too early to take proactive steps to reduce liability. First, volunteer and technology communities should not undertake rescue by sending volunteers to provide emergency services or directing the delivery of aid. Second, these groups should not communicate with victims but should assume the role of the passive observer, collecting, organizing and making information available. Third, groups should discourage reliance on information they disseminate with the use of disclaimers and other notices indicating that any information should not be relied upon for life safety purposes.
Crowdsourced groups have the potential to be a valuable resource in quickly getting help to where it is needed most. By proactively addressing liability issues, these groups can help ensure that their model will be viable for years to come.
This article is published for informational purposes only and is not a description of the law in any state. It should not be construed as providing legal advice on any particular matter.
Edward S. Robson is the managing member of Robson & Robson LLC, a law firm located outside of Philadelphia. Mr. Robson has represented emergency service organizations in a variety of matters, including First Amendment issues, civil rights, employment, contract negotiations, internal governance, personnel policies, SOP's and equipment purchases.
He has volunteered as an emergency medical technician since 2003 and currently serves as a member of the Board of Directors of a large suburban fire company. Mr. Robson graduated with honors from both Villanova University and Villanova University School of Law and is a member of the Pennsylvania and New Jersey bars.
Edward S. Robson, Esquire
Robson & Robson, LLC
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Erobson[at] robsonlaw [dot] com
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