Benefits of Shelter in Place for Businesses

Dear Business Manager/Owner:

Handout prepared by the City Attorney about the liability a business faces if they fail to follow recommendations for shelter-in-place during a chemical emergency.  Consult your own attorney to obtain legal advice relating to your specific business situation. Consult your insurance provider to determine if having an emergency plan with shelter-in-place procedures may reduce your property or liability insurance rates.

In an effort to explain the benefits of the “Shelter In Place” program, as it relates to the potential liability of a business and/or its owner, in a chemical emergency, following is a brief analysis of the potential exposure to liability that may exist for failing to develop an emergency action plan for employees and customers.

Negligence - “The omission to do something, which a reasonable man guided by those ordinary considerations which ordinarily regulate human affairs would do, or the doing of something which a reasonable and prudent man would not do.”

“Negligence is the failure to use such care as a reasonably prudent and careful person would use under similar circumstances; it is the doing of some act which a person of ordinary prudence would not have done under similar circumstances or failure to do what a person of ordinary prudence would have done under similar circumstances.”

                                                                                                                                                                                        Black’s Law Dictionary – Fifth Edition

During an actual chemical emergency, all persons in the vicinity of the chemical release should be advised of the emergency through the emergency siren system, and/or by telephone through the multi-media system.  In such a situation, a business owner may be held responsible for protecting the health and safety of all persons within their building or physical space.  The appropriate actions that should be taken by the business owner and the potential liability for an act or failure to act depending upon the particular fact situations, however, the existence of a “Shelter-In-Place” program and the implementation of an appropriate action plan will assist a business owner in protecting their employees and/or customers from potential harm.

In the development of an emergency action plan, several potential situations should be considered to allow for the proper planning of dealing with such situations.  Following are a couple of examples of situations that may occur during an actual chemical emergency.

Assume that a chemical release occurs and that all persons are advised to remain where they are, secure all doors, shut all windows and turn off all cooling and heating systems.

Does your emergency action plan address the following situations:

  •  An employee or customer desires to leave your premises which would expose others to potential harm from opening a door.
    •  The Deer Park Local Emergency Planning Committee recommends the employee or customer be advised to remain inside as per the LEPC’s recommendation to “shelter-in-place”.  If the employee or customer insists on leaving, they should be allowed to leave at their own risk. 
  • After your premises are secure, a person from outside desires to enter your building, which could expose those individuals inside to potential harm.
    • The Deer Park Local Emergency Planning Committee recommends the person outside be allowed to quickly enter your building to seek shelter. 

             In both cases, the LEPC recommends employees and customers inside should be moved away from the door as far as possible.   The door should be opened and re-closed as quickly as possible to minimize any possible exposure.  Locking the door with employees and customers inside would be a violation of the City’s fire code.

              The potential liability of an owner for a particular act or failure to act in each of these situations would depend upon several factors.  Although a plan for every situation is unlikely, a well-thought-out emergency action plan could help to protect those individuals who are on your premises as well as reduce the potential exposure to liability for your actions or lack of action in such situations.

 THIS MEMORANDUM IS FOR GENERAL INFORMATION PURPOSES ONLY AND IS NOT INTENDED TO BE A LEGAL OPINION.  THE RECOMMENDATIONS OF THE DEER PARK LOCAL EMERGENCY PLANNING ARE INCLUDED AT THE COMMITTEE’S REQUEST AND DOES NOT REPRESENT A LEGAL OPINION AS TO THE MOST APPROPRIATE COURSE OF ACTION IN SUCH SITUATIONS.  IF YOU HAVE ANY QUESTIONS REGARDING POTENTIAL LIABILITY FOR YOUR CUSTOMERS DURING AN EMERGENCY, YOU SHOULD CONSULT AN ATTORNEY.

Very truly yours, 
Jim G. Fox, City Attorney