Also known as: imminent dangers · imminent harm · immediate danger
Written by attorneys — see sources below.
An immediate threat of serious harm that justifies defensive or protective measures by another party. The threat must be real and pressing enough that delay would prevent effective response.
State officials in Borderland learn of an armed force massing just across the line and preparing to cross at dawn. Without waiting for Congress, the governor orders state troops to intercept the incursion. The action rests on the presence of imminent danger that admits of no delay.
Worker Ivan Ivanov is ordered to repair wiring inside a silo while a supervisor watches. A sudden grain avalanche traps Ivan and begins to suffocate him. The supervisor, aware of the situation, fails to activate the emergency shutoff or summon help. The master faces liability for not averting the threatened harm.
During wartime, military commanders order the removal of residents from coastal zones after intelligence indicates sabotage teams are preparing attacks. Courts uphold the orders because the authorities reasonably apprehended the gravest imminent danger to public safety.
Following the attack on Pearl Harbor, the United States declared war on Japan on December 8, 1941. On February 19, 1942, the President issued Executive Order No. 9066 authorizing military commanders to prescribe military areas from which any or all persons could be excluded. Lieutenant General DeWitt, commander of the Western Defense Command, issued Public Proclamation No. 1 on March 2, 1942, establishing Military Areas Nos. 1 and 2 covering the Pacific Coast states and portions of Arizona. On March 21, 1942, Congress enacted legislation making it a misdemeanor for any person to enter, remain in, leave, or commit any act in a military area contrary to restrictions imposed by military order. On March 27, 1942, General DeWitt issued Proclamation No. 4 prohibiting all persons of Japanese ancestry within Military Area No. 1 from leaving the area until further order. On May 3, 1942, he issued Civilian Exclusion Order No. 34, which required all persons of Japanese ancestry to depart from a described portion of Military Area No. 1, including San Leandro, California, by May 9, 1942, and to report to assembly centers for instructions. Fred Korematsu, a native-born United States citizen of Japanese ancestry residing in San Leandro, remained in the prohibited area after the deadline. Korematsu was charged by information in federal district court with violating the March 21, 1942 Act by knowingly remaining in the area covered by Exclusion Order No. 34. He was tried under a plea of not guilty, convicted, and placed on probation for five years. The Circuit Court of Appeals affirmed the conviction, and the Supreme Court granted certiorari because of the importance of the constitutional question presented. At the time of the charged violation on May 30, 1942, Korematsu was subject to an earlier order prohibiting him from leaving Military Area No. 1 and the later exclusion order requiring him to leave unless he reported to an assembly center. No question was raised at trial concerning his loyalty to the United States, and the sole basis for the conviction was his Japanese ancestry and presence in the area after the exclusion date.
View caseThe Secretary issues an emergency temporary standard limiting worker exposure to a chemical after studies show even brief contact can cause irreversible lung damage. The standard is sustained only because the agency demonstrated a significant risk of imminent harm rather than a speculative possibility.
The Occupational Safety and Health Act of 1970 directed the Secretary of Labor to develop standards ensuring safe and healthful working conditions for every working man and woman. Benzene, a colorless aromatic liquid produced in quantities of approximately 11 billion pounds in 1976, was used in motor fuels, solvents, detergents, and other organic chemicals. Over one million workers faced additional low-level exposures through employment in petroleum refining, petrochemical processing, rubber manufacturing, and gasoline service stations. In 1971 the Secretary adopted a national consensus standard limiting airborne benzene to 10 parts per million as an eight-hour time-weighted average with a 25 ppm ceiling for ten-minute periods. Between 1974 and 1977 additional epidemiological studies linked benzene to leukemia. NIOSH conducted an interim study of two Pliofilm plants in Ohio that reported at least a fivefold increase in expected leukemia incidence among workers exposed from 1940 to 1949. Other studies, including one by Dow Chemical, identified leukemia deaths among workers whose exposures had not exceeded 2 to 9 ppm. In October 1976 NIOSH recommended an emergency temporary standard of 1 ppm. The Fifth Circuit temporarily restrained the emergency standard. OSHA then proposed and, after hearings that began in July 1977, promulgated a permanent standard in February 1978. The permanent standard reduced the permissible exposure limit to 1 ppm, imposed a 5 ppm ceiling for any fifteen-minute period, required initial monitoring and semiannual medical examinations when exposures exceeded 0.5 ppm, mandated engineering controls rather than respirators where feasible, and prohibited skin or eye contact with liquids containing more than 0.5 percent benzene after a three-year phase-in. The standard exempted storage, transportation, distribution, sale, or use of gasoline after discharge from bulk terminals. OSHA estimated capital costs of approximately $266 million, first-year operating costs of $187 million to $205 million, and recurring annual costs of $34 million, with the largest per-employee expenditures falling on the petroleum refining and petrochemical segments. On pre-enforcement review under 29 U.S.C. § 655(f), the United States Court of Appeals for the Fifth Circuit held the regulation invalid in 1978. The Supreme Court reviewed the Fifth Circuit judgment.
View caseState inspectors close a residential facility after finding several residents cannot move themselves from situations involving imminent danger such as fire. The operators challenge the closure orders, but the requirement that all residents be capable of self-evacuation is upheld.
Buckhannon Board and Care Home, Inc., which operates care homes that provide assisted living to their residents, failed an inspection by the West Virginia Office of the State Fire Marshal because some of the residents were incapable of "self-preservation" as defined under state law. On October 28, 1997, after receiving cease-and-desist orders requiring the closure of its residential care facilities within 30 days, Buckhannon Board and Care Home, Inc., on behalf of itself and other similarly situated homes and residents, brought suit in the United States District Court for the Northern District of West Virginia against the State of West Virginia, two of its agencies, and 18 individuals, seeking declaratory and injunctive relief that the self-preservation requirement violated the Fair Housing Amendments Act of 1988 and the Americans with Disabilities Act of 1990. Respondents agreed to stay enforcement of the cease-and-desist orders pending resolution of the case and the parties began discovery. In 1998, the West Virginia Legislature enacted two bills eliminating the self-preservation requirement, and respondents moved to dismiss the case as moot. The District Court granted the motion, finding that the 1998 legislation had eliminated the allegedly offensive provisions and that there was no indication that the West Virginia Legislature would repeal the amendments. Petitioners requested attorney's fees as the prevailing party under the FHAA and ADA. They argued that they were entitled to attorney's fees under the catalyst theory. This theory posits that a plaintiff is a prevailing party if it achieves the desired result because the lawsuit brought about a voluntary change in the defendant's conduct. The District Court accordingly denied the motion and, for the same reason, the Court of Appeals affirmed in an unpublished, per curiam opinion. To resolve the disagreement amongst the Courts of Appeals, the Supreme Court granted certiorari and now affirms the judgment of the Court of Appeals.
View caseA university defends a race-conscious admissions policy by arguing that racial diversity is necessary to avoid violence on campus. The justification fails because obtaining educational benefits from diversity does not rise to the level of imminent danger to life and limb.
Abigail Fisher, a Caucasian applicant, was denied admission to the University of Texas at Austin's 2008 entering class after submitting one of 29,501 applications, of which 12,843 were admitted and 6,715 enrolled. Fisher sued the University and school officials in the United States District Court for the Western District of Texas, alleging that the University's consideration of race in admissions violated the Equal Protection Clause. The parties cross-moved for summary judgment. The District Court granted summary judgment to the University. The United States Court of Appeals for the Fifth Circuit affirmed. Prior to 1997 the University considered an applicant's Academic Index reflecting test scores and high school performance along with race. After the Fifth Circuit's 1996 decision in Hopwood v. Texas, the University stopped considering race and substituted a Personal Achievement Index measuring leadership, work experience, awards, extracurricular activities, community service, and socioeconomic factors. The Texas Legislature enacted the Top Ten Percent Law granting automatic admission to the top 10 percent of students at each qualifying high school. Following this Court's decisions in Grutter v. Bollinger and Gratz v. Bollinger, the University adopted its current program in 2004. It included a student's self-identified race from five predefined categories as a component of the Personal Achievement Index score. The Proposal relied on a study of undergraduate classes with five to twenty-four students showing limited minority enrollment and on anecdotal student reports, concluding that the University lacked a critical mass of minority students. Over the dissent of seven judges the Court of Appeals denied rehearing en banc. Petitioner sought a writ of certiorari, which was granted.
View caseImminent danger requires an immediate, real threat that leaves no time for ordinary enforcement procedures. A general risk may be serious yet not trigger the same urgent duties or exceptions.
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Yes. An immediate threat of harmful contact that would cause a reasonable person to apprehend injury supports the use of defensive force. The danger must be imminent rather than remote or speculative.
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The prisoner must show an immediate threat of serious physical injury that is real and not merely hypothetical. Courts examine the specific facts alleged to determine whether the danger is imminent.
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The employer must exercise reasonable care to avert the threatened harm once the danger is known to management. Failure to act exposes the employer to liability for resulting injury.
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…confinement to the home from 8 p.m. to 6 a.m. Nothing short of apprehension by the proper military authorities of the gravest imminent danger to the public safety can constitutionally justify either. But exclusion from a threatened area, no less than curfew, has a definite and close relationship to the prevention of espionage and…