Could Kentucky officials order and forcibly enforce an emergency evacuation, and when would they be liable?

Plain-English summary

Kentucky’s disaster-services director asked whether state and local officials could order emergency evacuations, remove people who refused, and face liability for injury or property damage connected to an evacuation. The Attorney General answered in 1992 that the Governor, mayors and county judges/executive had statutory authority to initiate disaster response including evacuation. The AG read the response powers to permit forced removal of people refusing an order. It also read the then-current statute to exempt officials and specified public and volunteer actors from liability unless they were guilty of wilful misconduct, gross negligence or bad faith.

Currency note

This opinion was issued in 1992. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Historical summary

Officials ordering emergency response

The AG pointed to KRS 39.408 and 39.409 as authority for the Governor, mayors and county judges/executive to initiate disaster and emergency response. The definition in KRS 39.401 expressly included evacuation of persons. The AG interpreted its additional language about necessary or incidental activities to permit the forced removal of people who refused to comply with an evacuation order.

People and property affected by an evacuation

The request raised injuries during evacuation and damage to homes or businesses while residents were absent. The AG answered the liability question through KRS 39.433’s exemption for the state, political subdivisions, employees, agents and volunteer or auxiliary disaster workers. It said the exemption did not cover wilful misconduct, gross negligence or bad faith. It did not decide liability for a particular event.

Common questions

Could Kentucky’s Governor or local executives order an evacuation?

Under the statutes the AG read in 1992, the Governor, mayors and county judges/executive could initiate a disaster response, and that response expressly included evacuation.

Could officials force someone to leave during that evacuation?

The AG said yes. It interpreted authority for necessary or incidental response activities to include removing by force someone who refused an evacuation order.

Was an official automatically liable if someone was injured while evacuating?

The AG said the then-current liability exemption applied if the official was not guilty of wilful misconduct, gross negligence or bad faith. It did not decide any individual injury claim.

Did the same liability answer address damage to an evacuated home or business?

Yes. The director included that property-damage scenario in the question, and the AG answered that KRS 39.433 exempted the listed actors unless the specified misconduct was present.

Background and statutory framework

The opinion applied 1992 KRS Chapter 39’s disaster and emergency response provisions. KRS 39.401 included evacuation in the definition of response; KRS 39.408 and 39.409 identified officials who could initiate response; and KRS 39.433 supplied the liability exemption and exceptions described by the AG. The opinion answered the statutory questions generally, without finding facts about an actual evacuation.

Citations and references

• KRS 39.401: definition of disaster and emergency response, including evacuation.
• KRS 39.408 and 39.409: authority to initiate response identified by the AG.
• KRS 39.433: liability exemption and its misconduct exceptions as described by the AG in 1992.

Source

• Landing page: https://kdla.access.preservica.com/uncategorized/IO_d79c616a-bd0a-457c-96fa-c414b423d03d/
• Original PDF: https://kdla.access.preservica.com/download/file/IO_d79c616a-bd0a-457c-96fa-c414b423d03d

Original opinion text

OAG 92-3

January 15, 1992
James H. Molloy
Executive Director
Division of Disaster and Emergency Services Department of Military Affairs Frankfort, Kentucky 40601-6168 Dear Mr. Molloy: You have presented the following questions to the Attorney General:

1. Does the Governor, other state official or a county judgeexecutive or mayor have specific authority to order
   evacuation when deemed necessary to save lives, prevent injury or to protect public safety?
2. Does the Governor, other state official or any local official
   have authority to remove individuals or groups by force based on imminent threats to life and safety? If so, may this authority be used to require individuals to evacuate residences or businesses in time of emergency?
3. What liability is incurred by a public official in ordering and
   enforcing evacuation? For example, to what extent is a public official who orders evacuation liable if people ordered to evacuate are injured while doing so? In addition, to what extent is a public official who orders or forces evacuation liable if evacuated homes, businesses or other property are damaged during the absence of the owner or resident? KRS Chapter 39, entitled Disaster and Emergency Services Management, provides public officials with authority to respond to emergency situations by exercising certain powers termed “disaster and emergency response.” That expression is defined in KRS 39.401 to include among other things “evacuation of persons . . . and other functions related to effective reaction to a disaster or emergency situation, together with all other activities necessary or incidental to the preparation for and carrying out of the foregoing functions.” Authority to initiate disaster and emergency response is granted to the

OAG 92-3
Page 2

Governor, mayors, and county judges/executive in KRS 39.408 and 39.409. Therefore the answer to your first question is yes. The excerpt from KRS 39.401 quoted in the preceding paragraph indicates that the authority granted under the statutes should be construed liberally. We believe that by granting officials the authority to conduct “all other activities necessary or incidental to” the enumerated functions, the legislature has authorized the removal by force of individuals who refuse to comply with evacuation orders. Therefore the answer to your second question is yes. With respect to liability for official acts in connection with emergency and disaster response, KRS 39.433 provides an exemption from liability, except in cases of wilful misconduct, gross negligence, or bad faith, to the state, its political subdivisions, its employees and agents, and volunteer or auxiliary disaster and emergency services workers. Therefore the answer to your third question is that there is no liability if the official is not guilty of wilful misconduct, gross negligence, or bad faith.

Sincerely,
Chris Gorman
Attorney General
Ross T. Carter
Assistant Attorney General
RTC/rtc