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You environmentalists, like the hundreds of sanitarians, engineers and supporting aides we employ in the Health Services Administration, are responsible for your wrongful acts occurring in the course of your employment. It is a basic concept of society that a wrongdoer should be held liable for the natural, ordinary and probable consequences that result from his wrongful act. These wrongful acts are "torts". To know and understand your personal tort liability, it is necessary to succinctly describe those kinds of torts with which you are at greatest risk of becoming involved, replete with the major legal precepts underlying them.

 Torts may arise out of: (1) a direct invasion of some legal right of an individual; (2) the infraction of some particular duty by which special damage accrues to an individual; or (3) the violation of some private obligation by which like damage accrues to an individual.

 A tortious act may be defined as ... "a commission or omission of an act, without right, whereby another receives some injury, directly or indirectly, in person, property or reputation." And a personal injury, whether administered intentionally, wantonly, or by negligence, constitutes a "tort". A personal injury or an injury to the person, within the meaning of the law, does not necessarily involve physical contact with the person injured, or mere bodily physical injuries, but may embrace all actionable injuries to the individual himself as distinguished from injuries to his property. Thus, "personal injury" may denote injury affecting the reputation, character, conduct, manner, and habits of a person. Torts are divided into two general classes, namely, property torts, which involve injury or damage to property, whether realty or personalty; and personal torts, which involve injuries to the person, whether to the body, reputation or feelings.

Legal liability in tort is predicated upon acts which cannot be justified in law, or which are done without just or lawful excuse, or justifiable cause of occasion. An act causing damage to another does not create liability where the person doing the act has a legal excuse or justification, such as reasonable destruction of private property by firemen to save lives or prevent the further spread of the flames. However, justification for the act causing loss or damage to another must be as broad as the act, and must cover not only the motive and the purpose, but also the means used. Moreover, the unlawful act which injures another cannot be justified by showing that the wrongdoer could have done a lawful act which would have caused even greater injury.

Where the tort is intentional rather than the result of negligence, the law generally recognizes fewer defenses, and is more inclined to find that the defendant's conduct was the legal cause of the harm complained of.

For the law to furnish redress, the wrongful act of the defendant must effect some legal interest of the party complaining. The existence of a legal right of a legal duty corresponding to such right are essential elements of a cause of action. Upon the violation of such a duty, a cause of action arises in favor of the person for whose benefit, safety or protection the duty is imposed, and upon whom the injury has fallen. Indeed, it has been said that the duty must be one owing to the particular individual injured. A tort having some of the characteristics of both negligence and willfulness occurs when a person with no intent to cause harm intentionally performs as acts so unreasonable and dangerous that he knows or should know, it is highly probable that harm will result. In other words, willfulness is regarded as sufficiently established where there is a knowledge that the act will probably result in an injury to another, and an utter disregard of the consequences. Although no mischief of any kind is intended, if a person commits an act which is dangerous to others, and which evinces a reckless disregard of consequences, he is answerable for the resulting injuries. A case in point would be where an engineer, supervising the construction of a ditch to lay water or sewer lines, is legally liable for the injuries and/or deaths to people where the excavations were not shored up properly and caved in on them.

It is clear that a cause of action in tort is not dependent upon a purpose or expectation upon the part of the alleged wrongdoer that the particular injury will follow his act, or indeed, that any injury will result from the act or omission; an action may lie for unintentional injury, or an injury committed by mistake. A cause of action may be predicated upon negligence, or the failure to observe a standard of care prescribed by law, without a conscious design to do wrong. There are some particular to torts, however, in which a purpose to injure constitutes one of the ingredients of the cause of action.

In recent years, an increasing number of legal complaints are arising out of product liability cases. The underlying precept guiding this point of law is founded upon the doctrine of strict liability in tort which applies to manufacturers of articles placed on the market, where the manufacturers know that the products are to be used without inspection for defect. Among the activities which have been held to be abnormally dangerous so as to impose absolute liability are the use of chemical sprays, the storage of a large amount of natural gas in a populated area, the storage of explosives generally, and the conduct of blasting operations which result in damage to adjoining property. Similarly, a fumigator or exterminator has been held strictly liable for personal injuries sustained as a result of fumigating operations. But in other cases. the courts have held that liability can only be sustained on the grounds of negligence, while in yet other cases,the courts have said that an exterminator must exercise a high degree of care. Some sanitarians in the Indian Health Service are engaged is such hazardous work when they undertake plague prevention activities on the Navajo Reservation. To prevent any illness to the IHS employees working on such projects, every reasonable and prudent precaution is taken to safeguard these employees and the citizens living in the immediate area. As a general rule, one who applies chemicals to crops by spraying or dusting them is held strictly liable for resultant damages on land other than that on which the crop in question is located. Since one cannot transfer to an independent contractor the duty arising in the conduct of ultra hazardous work, one who hires another to dust crops has generally been held absolutely liable for spraying operations by an independent contractor. But in other jurisdictions, it is held that one who sprays or dusts crops or hires another to perform this function can held liable only if he is shown to be negligent. In at least one jurisdiction where a showing of negligence is required, an inference of negligence as a result of spraying was allowed, thus bringing the court close to the liability without fault concept.

Other examples of absolute liability may be found in certain cases involving injuries by animals, and under statutes imposing absolute liability upon aircraft owners or lessees for injury to persons or property on the ground brought about by the rise, flight or fall of the aircraft or its contents.

It is generally recognized that a tort may involve acts which also constitute a breach of contract. Under this rule, it has been held that accompanying every contract there is a commonlaw duty to perform with care, skill, reasonable expedience, and faithfulness the thing agreed to be done, and the negligent failure to observe any of these conditions is a tort, as well as a breach of contract. This rule is particularly important to those of you who are in business for yourselves.

The enjoyment of private reputation unassailed is a right entitled to protection as much as the rights of life, liberty and property, and to invade the enjoyment of this reputation is a breach of legal duty for which an action will lie. The law allows recovery for foreseeable harm to establish protected interests such as reputation in trade or occupation, and reputation for chastity or honesty. Ordinarily, an injury to the reputation is effected by slanderous or libelous language. But, nonslanderous words, as well as lawful acts, intended solely to injure a man in his business, are actionable. it is under this category of torts the environmentalists must carefully guard against derogatory comments about people and/or the environment under their control, particularly in interviews with members of the press or radio or television.

It is a general rule that a cause of action may not be predicated upon mere rudeness or lack of consideration of one persons for another. Again, a mere threat to commit an injury is said not to be an actionable private wrong since it is only the promise of doing something which in the future may be injurious and may never be carried into effect.

While abusing, insulting, harrowing and cursing an individual has been held to constitute a wrong in some jurisdictions, it is now generally recognized that disturbing or insulting, humiliating, scandalous or abusive language may give rise to an action in tort where such language causes mental or emotional disturbance, or a bodily injury or illness resulting therefrom.

One who threatens, institutes or prosecutes legal actions against another may be liable to such persons in tort for causing emotional disturbance or for invasion of privacy. Environmentalists occasionally threaten violators with legal action to get compliance. As you can see, there is a serious risk involved in such method.

Time does not permit a complete and exhaustive discussion of all possible behaviors which may result in tort actions or which have come to the attention of the courts. However, I have attempted to provide the highlights of some tort actions in which environmentalists may be involved in the course of practicing their profession. Trespass to land, misrepresentation, defamation, invasion of privacy, malicious prosecution, and false imprisonment or physical restraint, are the general categories of tortious acts under which environmentalists are perhaps at greatest risk.

I want to make it unmistakably clear that there is no justification for a tort. The so-called justification is an exceptional fact which in reality, shows that no tort has been committed.- Intent in the law of torts has been said not to refer simply to the fact that the act itself in intentionally done; intent in the law of torts means that the perpetrator for the purpose of causing an invasion of another's interest knows that such an invasion is resulting, or is substantially certain that an invasion will result from his conduct. In other words, the fact that there was no intention to inflict injury on the plaintiff is no justification for an act which does in fact cause injury. In this respect, it has frequently been said that mischievous or malicious motives make a bad case worse, but that they cannot make that wrong which in its own essence is lawful. Conversely, the presence of a good motive, or rather the absence of an evil motive, does not render lawful an act which is otherwise an invasion of another's legal right; that is liability in tort is not precluded by the fact that the defendant acted without evil intent.

In summarizing this part of the lecture on the personal tort liability of environmentalists, a duty with which the law is concerned is the duty to abstain from intentional injury to others. Therefore, it is a general rule of the common law that a cause of action arises whenever one person, by an act not in the exercise of the lawful right, causes loss or damage to another with an intent, either actual or constructive, to produce such harm, without just or lawful excuse or justifiable cause or occasion.

Thus, you should: (1) know the responsibilities within the scope of your employment; (2) exercise reasonable and prudent judgment in carrying them out; (3) use the same degree of tact, courtesy and patience in working with the public as you would expect of others; and (4) consult the legal counsel for your agency whenever any unusual situation arises which even seems legally threatening to you.

 
Agency Law

The doctrine of respondeat superior underlies the legal principle that allows the transfer of liability from one individual to another. This maxim means that a "master" is liable in certain cases for the wrongful acts of his "servant", and a "principal" for those of his "agent". In legal parlance, a master and servant relationship exists where one person, for pay or other valuable consideration, enters into the service of another and devotes to him his personal labor for any agreed period. In the "law of agency", the principal and agent relationship arises wherever one person, expressly or by implication, authorizes another to act for him, or subsequently ratifies the act of another in his behalf. The term "agent" is distinguished from its synonym "servant" who act in behalf of his master and under the latter's direction and authority, but is regarded as a mere instrument and not as a substitute or proxy of the master. A servant is a worker for another who deals ordinarily with things and who has no power to bring about contractual relations with third persons; while an agent is one who deals not only with things, but persons, using his own discretion as to means, and frequently establishing contractual relations between his principal and third persons.

One of the most difficult problems in determining the liability of an employer for the acts of his employee arises where the employee at the time of the injurious occurrence had deviated from the usual course which his duties required him to take for some purpose of his own. While the mere fact that the employee was at the time of the injury combining his own business or pleasure with the business of the master does not necessarily relieve the master from liability, it is clear that an employer's liability is not to be determined by the fact that the wrongful act of his employee was committed during the employee's working hours, or before the task to which he had been especially assigned was finished, or on the employer's premises. The test of the liability of the employer is whether, at the very time of the injurious occurrence, the employee was performing some act in furtherance of his master's business, as well as an act in his own interest.

The general rule is that if any employee who is delegated to perform certain work for his employer steps or turns aside from his master's work or business to serve some purpose of his own, not connected with the employer's business, or, as it is often expressed, deviates or departs from his work to accomplish some purpose of his own not connected with his employment, the relation of master and servant is thereby temporarily suspended, and the master is not liable for his acts during the period of such suspension. The employee is then acting on his own volition, obeying his own will, not as a servant, but as an independent person, even though he intends to and does return to his employer's business after he has accomplished the purpose of his detour from duty. The test of the employer's liability for the act on an employee who departs from the employer's business for purposes of his own is whether he was engaged in his employer's business at the time of the tortious act, and not whether he purposed to resume it. The employee is, so long as he is engaged in affairs of his own or is pursuing some purpose unrelated to his master's business, acting as much outside the scope of his employment as he would be were his working day ended, or his task completed, and thus his employer is relieved from liability for the consequences of any tortious conduct committed by the employee during that period, however short it may be.

The employer is relieved from liability even though the injury complained of could not have been committed with out the facilities afforded the servant by his relation to his employer. Thus, apart from the liability created by statute, it is a well-established general rule that the owner of an automobile is not liable for injury or damage resulting from the negligent operation of his car by his employee while the latter is using it for his own pleasure or business. But if, in leaving the work with which he is charged, the employee negligently allows a dangerous condition to exist, whereby another is injured, the master is liable for the consequences of such negligent breach of duty.

A temporary deviation or departure from the employer's business merely suspends the relation of master and servant and the liability of the master from the servant's acts during the time of departure.

A mere intention of the servant to depart from his employment does not effect a departure. Generally, it may be said that in order for an employer to escape liability for an act of his employee on the ground of the latter's deviation or departure from the employer's business for purpose of his own, it must be made to appear that the employee abandoned and turned aside completely from the employer's business, to engage in some purpose wholly his own, for it is not every deviation from the direct line of his duties on the part of an employee that constitutes a turning aside from and an abandonment of his master's business. A deviation from the employer's business or interest to pursue the employee's own business or interest must be substantial in nature to relieve the employer from liability.

The courts are generally agreed that an employer may be held accountable for the wrongful act of his employee committed while acting in his employer's business and within the scope of his employment, although he had no knowledge thereof, or had disapproved it, or had even expressly forbidden it.

A master may be held responsible for the acts of his servant even though the servant acts directly contrary to the instructions of the master. If the act causing the injury is within the class of service for the doing of which the servant was employed, the master is bound, even if the servant was forbidden to perform the particular act.

An employer is liable for the acts of his employee within the scope of the latter's employment notwithstanding such acts are done in violation of rules, orders or instructions of the employer. When it is asserted that the employee acted without the knowledge of the employer and without his approval, or in violation of his orders and instructions, the questions of liability, as in other cases, is determined by whether the employee was in fact acting within the scope of his implied or apparent authority. If he was not, the employer is not to be held liable.

As a general rule, an employer is not liable under the doctrine of respondeat superior where his employee was authorized by him to use a particular kind of instrumentality, has instead used one of a substantially different kind. However, a master is liable for injuries caused by the negligence of a servant in the use of an instrumentality which is not of a substantially different kind from that authorized as a means of performing the master's service.

With respect to the liability of an employer for wrongs committed by his employee, where the acts of the employee are characterized by 'willful', 'intentional' or 'malicious', the decisions, particularly the earlier ones, reflect some difference of opinion. Indeed, under earlier common law it seems to have been the accepted view of many courts that an employer was not liable for the malicious or intentional torts of his employee even though committed by the employee while forwarding the employer's business.

To render the doctrine of respondeat superior applicable, the injury must arise in the course of the execution of some service, lawful in itself, but negligently or unskillfully performed. However, for a wanton violation of the law by a servant, although occupied about the business of his employer. such servant is alone answerable. The general proposition that a person shall be answerable for any injury which arises in carrying into execution that which he was employed to do seems to be too large.

The test of liability is not the motive of the employee in committing the act complained of, but whether the act was within the scope of duties of employment and in the execution of the service for which he was engaged. This does not mean that the motive which actuated the employee is of no importance. Under some circumstances, at least, the motive which actuated the employee may be of prima facie importance.

According to the trend of modern authority, the liability of an employer for the acts of his employee depends not upon whether the injurious act of the employee was willful and intentional, or was unintentional, but rather upon whether the employee, when he did the wrong, was acting in the prosecution of the employer's business and within the scope of his authority, or had stepped aside from that business and done an individual wrong.

The employer is accountable, of course, for any injury from the tortious conduct of his employee which is committed at his command or direction, or is within the scope of the employee's authority, and as a general rule, the employee also may be held accountable at the suit of a third persons, who has sustained an injury by reason of such tortious conduct. In other words, both the employer and employee may be required to respond in damages for a wrongful act of the employee which appears to have been within the scope of the employee's duties and, in many jurisdictions, they may be sued jointly.
 

Sovereign Immunity

Those of you employed by a state, county or local governmental agency may be protected against claims arising out of tortious acts occurring while you are carrying out those responsibilities within the scope of your employment. This protection is not afforded to employees of governmental units which have waived their rights to sovereign immunity.

Sovereign immunity is an inherent right of a state which affords it unique protection against legal actions. It is founded upon the maxim that the 'King can do no wrong'. Sovereignty is the supreme, absolute and uncontrollable power by which any independent state is governed. It is the power to do everything in a state without accountability. In other words, a state must first relinquish this right before it can be sued.

Many states have waived their immunity and will allow themselves, and in most cases, their officers and/or employees to be sued. These states have enacted the appropriate legislation to allow themselves to be sued for the tortious acts of their officers and/or employees. Other states have not. However, even in these states, employees are not always protected, particularly when they commit wrongful acts outside the scope of their employment.

Other protective measures have been taken in some states by statute which immunize their public officers and employees from liability for official acts. Examples of this type of legislation include: conditional immunity from liability for an injury caused by defective or dangerous conditions of public property; exemption from liability for persons engaged in work upon the highway; exemption of members of fire and police departments from liability in the operation of emergency vehicles; statutes prohibiting actions against constables for acts performed in obedience to a warrant issued by a justice of the peace; statutes prohibiting suit against members of a board of health for actions taken in combating disease where they have reasonable probable cause to believe the public health was in jeopardy.

However, subject to conflict and many narrow, tenuous and confusing distinctions, a public officer or employee may be individually liable for personal injuries caused by his negligence or misfeasance, not withstanding the immunity of the governmental authority, and not withstanding the fact that his negligence may not be imputed to the authority which employs him. For example, a New York court held that "engineers employed by the state were not exempt from personal liability for trespass upon another's land merely because they were acting in the course of their official duties". Also, in Texas, a court ruled that while "a city was not liable for the negligence of police officers in the discharge of their duty, this did not immunize an officer from liability for his own negligence while so engaged. Even though he is engaged in the performance of a public duty as a police officer, he is civilly liable when he acts in a wrongful, oppressive, or illegal manner and is also liable for acts of negligence." The Pennsylvania Supreme Court also held that the Pennsylvania doctrine of sovereign immunity did not preclude action against a county superintendent of highways and his predecessor for alleged breach of duty to maintain highways in a safe and proper manner.

It is critically important for you to know what the law is in your jurisdiction and how it affects your potential liability. Since many of you environmentalists are employees of the federal government, particularly in the Indian Health Service program of the Health Services Administration, you are at risk to be involved in a tort action; however, you may be pleased to learn that a special protection is afforded you against personal liability suits because of the Federal Tort Claims Act.

In enacting the Federal Tort Claims Act, Congress recognized the manifold injustice that springs from delimiting effects of the rule represented by the 'King Can Do No Wrong' maxim. It said, in passing the Act, that Congress intended to compensate the victims of negligence in the conduct of governmental activities in circumstances in which a private person would be liable, rather than leave just treatment to the caprice and legislative burden of individual private laws, and to eliminate the burden on Congress of investigating and passing on private bills seeking individual relief.

For those of you who may not be familiar with this Act, the Federal Tort Claims Act declares that the United States shall be liable for the negligent acts of its employees, in the same manner and to the same extent as a private individual would be liable under like circumstances; that is, like under state law. Since suits may be maintained against the United States only to the extent that the Federal Government has waived its immunity and has consented to being sued, as a prerequisite to judicial action under the Federal Tort Claims Act, the claimant must present his claim to the appropriate federal agency for administrative determination, and the claim must have been finally denied by the agency.

Generally, federal employees, for the purpose of tort liability, are: "officers or employees of the Government including officers or employees of any Federal agency, members of the military or naval forces of the United States, and persons acting on behalf of a Federal agency in an official capacity temporarily or permanently in the service of the United States whether with or without compensation." The term "Federal agency" for the purposes of tort liability "includes the executive departments and independent establishments of the United States, and corporations primarily acting as instrumentalities or agencies of the United States but does not include any contractor with the United States." Where a tort feasor is a civil servant, a member of the uniformed services or military services, there is no question of coverage. The main question is whether he/she was acting in the scope of his/her employment.

Those of you who enter into contracts for personal services with the Federal Government may be protected under the Federal Tort Claims Act. The question of whether one who commits an actionable tort is a Federal employee within the meaning of Federal Tort Claims Act is governed by Federal law. The general principles of master and servant are applied. The critical element is a finding of day-to-day supervision and control

It has been said that the Federal Tort Claims Act does not prohibit suits against U.S. Government employees based on personal liability for their torts, even though committed in the course of their employment, and that the principle under which an agent is liable for his own torts applies to at least certain acts of public officers or public instrumentalities. However, the remedies provided by the Federal Tort Claims Act are exclusive with respect to claims resulting from motor vehicle accidents, or by other statutes, relating to claims based on malpractice or the alleged negligent performance of medical or related services by certain Federal employees including PHS personnel.

Because legal jurisprudence is not founded upon an exact science, but upon the aggregate of court opinions arising out of reported cases and statutes, court decisions and opinions often vary from jurisdiction to jurisdiction. My advice to you is that you consult with the General Counselor of your agency regarding your personal tort liability. However, to minimize the risk of a successful suit against you, you should: (1) know the limits of the responsibilities within the scope of your employment; and (2) use reasonableness, prudence, discretion and tact in implementing them. There is no substitute for common courtesy and common sense.