But not really. Forseeability in tort law is a complicated concept, but one thing is undeniably true: for a duty to arise or legal cause to exist one need not be able to (or actually) foresee the precise type of harm that resulted. Instead, one only need be able to foresee that the risk of harm would arise. A shopping center defendant sued for negligent security in its parking lot cannot (successfully) say “well, I knew there has been and would be car thefts and car break-ins in our lot, but it never crossed my mind that someone would be raped there.”
The Bush Administration is now claiming that the government’s slow response is because it had no idea that the devestation would be so bad.
Well, read this release from the National Weather Service from Sunday, August 28, 2005:
URGENT – WEATHER MESSAGE NATIONAL WEATHER SERVICE NEW ORLEANS LA 1011 AM CDT SUN AUG 28 2005 ..DEVASTATING DAMAGE EXPECTED HURRICANE KATRINA A MOST POWERFUL HURRICANE WITH UNPRECEDENTED STRENGTH…RIVALING THE INTENSITY OF HURRICANE CAMILLE OF 1969. MOST OF THE AREA WILL BE UNINHABITABLE FOR WEEKS…PERHAPS LONGER. AT LEAST ONE HALF OF WELL CONSTRUCTED HOMES WILL HAVE ROOF AND WALL FAILURE. ALL GABLED ROOFS WILL FAIL…LEAVING THOSE HOMES SEVERELY DAMAGED OR DESTROYED. THE MAJORITY OF INDUSTRIAL BUILDINGS WILL BECOME NON FUNCTIONAL. PARTIAL TO COMPLETE WALL AND ROOF FAILURE IS EXPECTED. ALL WOOD FRAMED LOW RISING APARTMENT BUILDINGS WILL BE DESTROYED. CONCRETE BLOCK LOW RISE APARTMENTS WILL SUSTAIN MAJOR DAMAGE…INCLUDING SOME WALL AND ROOF FAILURE. HIGH RISE OFFICE AND APARTMENT BUILDINGS WILL SWAY DANGEROUSLY…A FEW TO THE POINT OF TOTAL COLLAPSE. ALL WINDOWS WILL BLOW OUT. AIRBORNE DEBRIS WILL BE WIDESPREAD…AND MAY INCLUDE HEAVY ITEMS SUCH AS HOUSEHOLD APPLIANCES AND EVEN LIGHT VEHICLES. SPORT UTILITY VEHICLES AND LIGHT TRUCKS WILL BE MOVED. THE BLOWN DEBRIS WILL CREATE ADDITIONAL DESTRUCTION. PERSONS…PETS…AND LIVESTOCK EXPOSED TO THE WINDS WILL FACE CERTAIN DEATH IF STRUCK. POWER OUTAGES WILL LAST FOR WEEKS…AS MOST POWER POLES WILL BE DOWN AND TRANSFORMERS DESTROYED. WATER SHORTAGES WILL MAKE HUMAN SUFFERING INCREDIBLE BY MODERN STANDARDS. THE VAST MAJORITY OF NATIVE TREES WILL BE SNAPPED OR UPROOTED. ONLY THE HEARTIEST WILL REMAIN STANDING…BUT BE TOTALLY DEFOLIATED. FEW CROPS WILL REMAIN. LIVESTOCK LEFT EXPOSED TO THE WINDS WILL BE KILLED. AN INLAND HURRICANE WIND WARNING IS ISSUED WHEN SUSTAINED WINDS NEAR HURRICANE FORCE…OR FREQUENT GUSTS AT OR ABOVE HURRICANE FORCE…ARE CERTAIN WITHIN THE NEXT 12 TO 24 HOURS. ONCE TROPICAL STORM AND HURRICANE FORCE WINDS ONSET…DO NOT VENTURE OUTSIDE!
That sounds pretty bad to me. In fact, what was coming was bad enough for the Administration to declare an emergency in certain Louisana parishes the day before. The President authorized “FEMA …to identify, mobilize, and provide at its discretion, equipment and resources necessary to alleviate the impacts of the emergency.” (When you hear the White House say that action was not taken because help was not requested think about these words in this press release.)
Despite the fact that the failure of the levees was projected in the past, I am confident that the Bush Administration did not think they would fail in this storm. I am also confident that had the Administration known that the levees were going to fail they would have acted more promptly. But in tort law and in life we seek to hold people accountable not only for what they knew but also (because we do not reward ignorance or ostrich-like behavior) for what they reasonably should have known.
The spin has been and will be – as it always is – “we did not know, we could not have foreseen what would happen.” The real question to be asked is “Armed with the information you have or that which was reasonably available to you did you act reasonably under the circumstances?”