In the context of public health, one can see how a situation such as this could
come into play with state statutes such as emergency quarantine orders. If, for
example, a quarantine is administered by the state under state law, tort
liability questions are answered through the specific quarantine exception of
the state tort claims act. Other types of emergency procedures would normally
be protected from tort liability by the broad discretionary function exceptions.
But the discretionary exception to liability can be taken away by a narrow
statute which leaves no room for choice or policy decision. This often occurs in
the area of health inspections. See
Gregor v. Argenot Great Central Ins. Co.,
851 So. 2d 959 (La. 2003)
(Department of Health held partly liable for
wrongful death of restaurant patron who died as a result of eating raw oysters
in a restaurant that failed to post mandatory warnings about the dangers of
consuming raw shellfish).
The state law may also be reviewed if it violates provisions of the federal
Constitution. For an emergency quarantine order, this likely would involve
habeas corpus or Fourteenth Amendment Due Process of liberty. In the case of
an emergency act or statute, courts are extremely unlikely to grant writs of
habeas corpus or strike laws which could undermine public health.
Jacobsen v. Mass., 197 U.S. 11 (1905)
(forced vaccination laws are not an
unconstitutional invasion of liberty because the policy interest of the public's
health outweighs the liberty interest of an individual). This is especially true
when the law contains standards for operation. South Carolina's emergency
health powers act contains procedures and standards for officials when an
emergency quarantine is declared, such as living conditions for the quarantined
and requirement for expedited judicial review. Such provisions enable the laws
to pass constitutional muster.