Forecast: Storm Warning for Meteorologist

The 1995 Farmer's Almanac is predicting a February dominated by "several mild spells despite cold snaps."

What if it's wrong? Would you sue the prognosticator? Preposterous, of course.

Even if you had relied upon these forecasts, no one really considers them accurate despite its 203-year history. Lucky, maybe. Reliable, not really.

Weather forecasting certainly has changed over the years. No longer do meteorologists rely upon solar spots, volcanic activity, ocean currents and the law of averages to predict whether the sun will shine.

Instead, computer technology, satellites and state-of-the-art radar surveillance are used to give people up-to-the-minute reports of what to expect. Forecasters tell workers whether to carry an umbrella in the morning and whether to put it away by the evening drive home.

It's no wonder, then, that even Chicagoans have come to expect no surprises when it comes to the weather. But even if it's not realistic to consider holding the local friendly forecaster liable to a television audience, it is not unthinkable that government meteorologists be held responsible for specific forecasts aimed at particular groups or to the relying public in certain situations.

Most weather forecasts emanate from public meteorologists employed by the National Weather Service, a division of the Department of Commerce. Congress commissioned the service by statute to forecast the weather, issue storm warnings and display weather and flood signals "for the benefit of agriculture, commerce and navigation."

Arguably, this charge creates a statutory duty for some, and more and more courts conclude that Congress clearly intended the National Weather Service to owe a duty of due care to people whom it knows depends on its services.

For instance, the National Weather Service issues forecasts to commercial fishermen for use in their marine work and for pilots in planning their flights.

In Springer v. United States, 6412 F.Supp. 913 (D.S.C. 1986), aff'd, 819 F.2d 1139 (4th Cir. 1987), the South Carolina District Court found that the legislative history of the National Weather Service clearly indicates that the government "intended to undertake and meet the responsibility for providing a reliable weather monitoring and protection system for persons it knew would rely upon it." Therefore, the government was held responsible for damages in the death of a pilot for not informing him of a wind shear that caused the small aircraft to crash.

The U.S. District Court for the Northern District of Illinois, however, did not accept that argument in the case against the Weather Service for damages from a tornado that struck the far western suburbs of Chicago Aug. 28, 1990. It allegedly caused 29 deaths, numerous personal injuries and property damage in excess of $160 million.

The devastating incident led to six separate lawsuits, which were consolidated for pre-trial purposes only under Berquist v. United States, National Weather Service, 849 F.Supp. 1221 (N.E.ILL. 1994). The consolidated action was decided under the Federal Tort Claims Act, 28 U.S.C., sec. 2671, which authorizes lawsuits against the United States for an employee's negligent actions.

Specifically, the complaints allege in 15 separate allegations that the National Weather Service "failed to issue timely and adequate tornado warnings to local law enforcement and emergency services personnel," which led to the failure of local officials activating the formal warning sirens.

The Weather Service filed a motion to dismiss. U.S. District Court Judge Charles Korcoras granted the motion based, in part, upon the discretionary function exception to the Federal Tort Claims Act, which excuses liability for actions involving an element of "judgment or choice" as opposed to a prescribed course of action from which there can be no other options.

The court found that the Weather Service's alleged negligence implicated cost and budgetary policy considerations and, therefore, was an exception to limited sovereign immunity under the Act. The facts of this case, however, are distinguishable from most weather-related cases. Weather predicting is not discretionary but is more a day-to-day operational function in reading radar and other weather surveillance equipment.

The very nature of the weather - pardon the pun - indicates that perhaps each case should be determined by examining the weather-related task involved, the audience utilizing the forecast and the time range of the forecast. These considerations along with the usual elements establishing tort liability - such as duty and causation - should lead to fair and uniform treatment under the Federal Tort Claims Act. Liability should extend to those legitimately injured by forecasters who negligently misstate the probabilities of weather conditions.

Even though everybody still talks about the weather, it's time to start doing something about it.