Public Health Grand Rounds
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A Menu of Suggested
Provisions for
Public Health Mutual Aid Agreements
Liability, Immunity,
and Indemnity
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Descriptive Note
Constitutional provisions, including those relating to governmental
or sovereign immunity, and statutes, including tort claims acts,
volunteer protection acts, Good Samaritan laws, EMAC, and other
emergency response statutes will strongly influence the content
of mutual aid provisions concerning liability, immunity from liability,
or indemnity. EMAC, Article VI, for example, provides:
Officers or employees of a party state rendering aid in another
state pursuant to this compact shall be considered agents of
the requesting state for tort liability and immunity purposes;
and no party state or its officers or employees rendering aid
in another state pursuant to this compact shall be liable on
account of any act or omission in good faith on the part of
such forces while so engaged or on account of the maintenance
or use of any equipment or supplies in connections therewith.
Good faith in this article shall not include willful misconduct,
gross negligence, or recklessness.
The ESAR-VHP Legal and Regulatory Issues Report and UEVHPA, cited
as potential resources in the preceding section, may also be of
assistance in analyzing and resolving legal issues, and in drafting
agreement provisions, relating to liability, immunity, or indemnity.
Obviously, involvement of legal counsel is particularly critical
at all times when dealing with these complex legal issues.
Optional sample provisions
Establishing EMAC-like liability protection:
- Any person or entity of a Party rendering aid to another
Party pursuant to this Agreement is considered an agent of the
requesting Party for tort liability and immunity purposes. Any
person or entity rendering aid to another Party pursuant to
this Agreement is not liable on account of any act or omission
in good faith while so engaged or on account of the maintenance
or use of any equipment or supplies in connection therewith.
Good faith does not include willful misconduct, gross negligence
or recklessness.
Conditionally indemnifying the responding party:
- The receiving Party, to the extent authorized by the laws
of the State, agrees to indemnify and hold harmless the responding
Party from liability.
- Each Party requesting aid pursuant to this Agreement expressly
agrees to hold harmless, indemnify and defend the Party rendering
aid and its personnel from any and all claims, demands, liability,
losses, suits in law or in equity which are made by a third
party. This indemnity shall include attorney fees and costs
that may arise from providing aid pursuant to this Agreement.
Provided, however, that all employee benefits, wage and disability
payments, pensions, worker’s compensation claims, damage to
or destruction of equipment and clothing, and medical expenses
of the Party rendering aid shall be the sole and exclusive responsibility
of the respective Party for its employees, provided, however,
that such claims made by a third party are not the result of
gross negligence or willful misconduct on the part of the Party
rendering aid.
Retaining liability (no immunity or indemnity):
- Each Party to this Agreement shall be responsible for its
own acts and omissions and those of its officers, employees
and agents. No Party to this Agreement shall be responsible
for the acts and omissions of entities or individuals not a
party to this Agreement.
- Each Party shall be responsible for any claim or cause of
action made against the Party or its employees arising under
the performance of duties under this Agreement, and none of
the Parties shall be required to indemnify, defend or hold harmless
the other Parties for any such claim or cause of action.
- Each Party shall be liable for its actions in accordance
with this Agreement and federal and state law, as applicable,
including law of sovereign and governmental immunity. No term
or terms of this Agreement may be construed as an express or
implied waiver of sovereign and governmental immunity.
- Each Party shall be responsible for damages to or loss of
its own equipment and waives the right to sue any other Party
for any damages to or loss of its equipment, even if the damages
or losses were caused wholly or partially by the negligence
of any other Party, its officers, employees, or volunteers.
Absolving parties from liability for withholding or withdrawing
aid:
- No party to this Agreement or any officer of any Party shall
be liable to any other Party or to any other person for failure
of any Party to furnish assistance to any other Party, or for
recalling assistance.
- The execution of this Agreement shall not give rise to any
liability or responsibility for failure to respond to any request
for assistance made in pursuance of this Agreement.
Granting release or waiver of claims:
- Each Party agrees and hereby releases and waives all claims
against all other Parties with respect to any loss, damage,
personal injury, or death sustained by that Party, its employees,
or third parties as a result of its participation in the activities
covered by this Agreement, except to the extent that such claim
alleges gross negligence or willful and wanton misconduct by
a Party participating in this Agreement.
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