| |
In theory, the presence of tort liability acts
as an incentive for earthquake safety.
However, legal theory and ABAG's interviews of company officials identified
other motives for safety.
- First, there are the motives that the lawyers
term "self preservation" and "altruism" and what
the officials call "concern for worker safety and well being."
- Second, the lawyers note "economic and contractual
obligations" and the business officials talk of "good business
practice."
- Third, the lawyers discuss "statutory or
regulatory standards" while the officials speak of "building
codes."
There are also factors that reduce the effectiveness
of liability rules discovered in both the legal research and ABAG's surveys,
including:
- The uncertainty of the liability rules.
- Difficulties in understanding those rules.
- Problems in getting enough information to make
the kind of rational risk assessment of cost benefit analysis discussed
earlier.
The researchers examined tort liability,
that is, liability for a civil wrong or injury, rather than a criminal
wrong, not related to a breach of contract. The liability system seeks
to provide damages to the victim of that tort. This system possibly evolved
as part of the English common law hundreds of years ago to provide fairness
of equity on an individual basis. The explicit use of liability for safety
goals, such as those related to earthquake preparedness, was only recognized
by the American judicial system within the last hundred years.
Various rules are used to determine whether a person or entity is liable
for the action that resulted in harm. These include two related negligence
standards.
- Was the conduct less than the standard of ordinary
care or reasonably care?
Is it behavior that would be avoided by the reasonable person?
- In comparing the costs of acting to reduce the
risk of harm, were these costs less than the potential benefits?
There are also several strict liability
standards.
- The products liability standard substitutes a
strict "products defect" standard for
a negligence standard.
- In the event that the harm or damage is caused
by activities that the law considers "ultrahazardous", tort
liability is also automatically imposed.
- The vicarious liability of an employer for torts
committed by its employees within the scope of their employment is
generally accepted.
- Failure to meet some statutory or regulatory
standards is negligence per se if the harm that results from such
a failure is the type of harm which that statute or regulation is
intended to prevent.
- Finally, the statutory scheme of workers' compensation
imposes strict liability of the employer for all injuries to employees,
if the injuries occur "in the course of" and " arise
out or" their employment. However, the statute restricts the
amount
of damages which the employee may recover.
The kinds of harm or injury that are
recognized by the legal system include:
- Bodily injury or death
- Property damage
- Emotional distress
- Economic harm
As alluded to in the previous section,
liability can be more effectively used to promote safety. Almost all officials
and professionals noted that liability for earthquake hazards should exist
in certain situations. Those officials interviewed indicated that they
believed such liability was consistent with the moral obligations of companies
and the legal concepts of "reasonableness" and "standard
of care." They noted that liability should depend on the cost of
mitigation, the size and foreseeability of the earthquake, and the standard
of care established. However, no clear consensus exists for making companies
or design professionals more liable or more immune to promote safety.
Several of the more popular approaches for encouraging hazard reduction
will indirectly, rather that directly, use liability.
1. Educational Approaches
- Educating officials on the liability rules would
increase their effectiveness by promoting concern for the economic
ramifications of not reducing hazards.
- Education on hazards identification would improve
the ability of officials
to make the rational cost-benefit analysis essential to one definition
of negligence.
2. Legislative Approaches
- Legislating the relative lack of an "Act
of God" defense (or even publicizing this lack) would reduce
the perceived uncertainty of the liability rules.
- Setting a specified "standard of care"
would also reduce the uncertainty of the rules. Such a standard could
be set for a general procedure, such as independent review, or introduced
as part of particular statues or regulations, such as might be developed
for retrofitting existing buildings.
- Requiring posting of public notices on dangerous
structures posing varying degrees of earthquake hazards would be another
approach. This requirement may affect legal findings of comparative
negligence.
3. Insurance Approaches
- Insurance companies would encourage hazard reductions
by basing premiums on past performance and in lowering premiums if
companies reduce certain hazardous conditions.
Other approaches to promoting earthquake
safety have little or nothing to do with liability rules, including, for
example, financial incentives.
ABAG (Association of Bay Area Governments)
received funding from the National Science Foundation's Earthquake Hazard
Reduction Program for a 2-year study to examine these issues. In addition
to a thorough legal analysis, ABAG staff conducted lengthy interviews
with company and local government officials at sites of recent earthquakes
- San Fernando, El Centro, Santa Barbara and Livermore, as well as in
Redwood City for control purposes. Written surveys were also sent to key
company officials and design professionals working with a variety of types
and sizes of companies throughout California. The interview and mail survey
samples were supplemented with additional interviews of company officials
in selected business sectors.
This summary highlights the project's most interesting findings and conclusions.
Note that these views are those of ABAG staff, not of any federal agency,
including the National Science Foundations. For more information on obtaining
other project publications contact ABAG's
Department of Public Affairs. |
