The Five Greatest Liabilities Municipalities Face in North Carolina

1.Automobile wrecks 2.Premises Liability 3.Sewer Backups 4.Police 5.Employment

1/1/1999 – 9/30/2004

1.Automobile wrecks Automobile wrecks account for 52 % of the dollars paid on claims by the NCLM From January 1999 through September 2004, $15,659,234 has been spent on auto liability claims

Legal Standard Negligence If an employee is: 1.Acting within the course and scope of his or her employment And 2. Fails to exercise reasonable care in driving a car

And causes a car wreck

The Municipality is Liable

How can you protect yourself? Obtain a certified driving record from the Division of Motor Vehicles

How can you protect yourself? Establish an accident review board -to determine a chargeable accident -applicable to all levels of employees

How can you protect yourself? Implement a two (2) hit rule -The employee gets a written reprimand after the first accident -The employee loses driving privileges after the second accident -Require the at fault employee to pay any loss deductible

How can you protect yourself? Implement a drug screen policy to be conducted after every accident Post accident testing will deter drug use on the job

How can you protect yourself? As an alternative to revoking an employee’s driving privilege Require your employees to maintain their own liability insurance Their policy will be primary and your City’s will be excess

An ounce of prevention is worth a pound of cure!

2. Premises Liability Premises Liability Claims account for 18% of the total dollars paid by the NCLM From January 1999 through September 2004, $3,833,621 has be spent on premises claims

Premises Liability relates to all premises maintained by your municipality

It ranges from Sidewalks

To athletic fields

To rocks thrown from weed eaters and mowers hitting windshields

To cutting phone lines while trenching

To cars hitting potholes

Legal Standard Notice and reasonable care 1.If a municipality knows of a problem or a problem has existed for such a period of time it should have known And 2. The Municipality fails to exercise reasonable care to fix the problem or warn the public.

And someone gets hurt You guessed it

The Municipality is Liable

How can you protect yourself? Have Public Works conduct routine inspections of city property Regular Inspections will help you identify problems and prevent injuries and therefore lawsuits

How can you protect yourself? Repair problems discovered in your routine inspections OR

Place warning signs for the public Such as -Caution Tape

Cones

Phosphorescent Paint

How can you protect yourself? Implement a 24 hour “on call” policy for after hour problems Identify problems quickly to help prevent injury, lawsuits, and save future manpower

An ounce of prevention is worth a pound of cure!

3. Sewer Backup Sewer Backup Claims on average account for 12% of the total dollars paid by the NCLM From January 1999 throug4h September 2004, $3,490,177 has be spent on sewer backup claims

Causes Clogged lines from grease

Causes Clogged lines from objects

Causes Clogged lines from roots

Sewer Backup claims have the same legal standard as premises claims....

Legal Standard Notice and reasonable care 1.If a municipality knows of a problem or a problem has existed for such a period of time it should have known And 2. The Municipality fails to exercise reasonable care to fix the problem or warn the public.

How can you protect yourself? Educate your municipality on backflow devices

How can you protect yourself? Investigate all backflow complaints immediately and take corrective action Once a problem is identified, give written notice to the citizen that they are required to install a backflow valve The average price for a backflow device is between $20 -$30.

How can you protect yourself? Enact a Backflow Ordinance -Many municipalities have backflow device requirements for their water system to prevent pollution of their water supply -A sewer backflow requirement will assist in limiting the number of sewer backups and therefore limit the number of sewer backup claims.

How can you protect yourself? Educate your Public Works Staff –The League has an excellent sewer liability training video available in their library –The video encourages a proactive approach to the management of your public utilities –The League’s loss prevention staff will be glad to work with you in your problem areas or conduct the training for you

An ounce of prevention is worth a pound of cure!

4. Police Liability Police Claims on average account for 9% of the total dollars paid by the NCLM From January 1999 through September 2004, $2,510,462 has be spent on police claims

Types of Claims Unlawful Arrest -an arrest without probable cause

Types of Claims Excessive Force -using unreasonable force in effectuating an arrest

Types of Claims Police Pursuits -Allegations that the police were negligent in pursuing a criminal

Arrest and Excessive Force Claims

How can you protect yourself? Ensure you hire and maintain only qualified personnel -Conduct criminal record checks and psychological profiles on all new hires -Require ongoing training, especially in the areas of probable cause and use of force

How can you protect yourself? Investigate Complaints -Investigate all written complaints -Maintain at least one trained Internal Affairs Investigator -Place the subject officer on paid suspension -Elicit the assistance from an outside agency

Proper Investigations will Ultimately Reduce your Liability Exposure Proper investigations serve several useful purposes -Hold your officers accountable -Send a message to your citizens -Help identify deficiencies in your department - Allows you to further focus your training -Find the “bad apples”

Pursuit Claims

Pursuits cause more deaths in the line of duty than any other law enforcement activity.

How can you protect yourself? Implement a Police Pursuit Policy -Ensure your officers are aware of your policy -Discipline violators -Use in conjunction with Emergency Response Training -Create a Pursuit Review Board -Required by State Law

An ounce of prevention is worth a pound of cure!

5. Employment Claims Employment Claims on average account for 8% of the total dollars paid by the NCLM From January 1999 through September 2004, $2,244,675 have been spent on employment claims

Major types of Claims Wrongful termination Discrimination Harassment

Wrongful Termination Employee At Will Non Contract public employees are employees at will Employees at will can be fired for any reason or no reason but not for an illegal reason Illegal reasons include race, gender, age and disability

However

You Can Create a Property Right in Continued Employment for Your Employees

Property Rights A property right is created by law or contract If a personnel policy is adopted by ordinance it can create a property right in continued employment A personnel policy resolution is the better course of action

How can you protect yourself? -DO NOT adopt your personnel policy by ordinance -Ordinances have the effect of law -Adopt your personnel policy by resolution -Resolutions do not have the effect of law

Personnel Policy Resolution Specify your employees are employees at will Require written documentation of all discipline Implement progressive discipline to include grounds for immediate dismissal

Do Not Rubber Stamp Evaluations It is extremely difficult to justify a termination for cause when the terminated employee has glowing evaluations. Most supervisors do not like to critique their employees. This practice can set your municipality up for an employment claim.

Discrimination and Harassment Claims

How can you protect yourself? -Implement written anti discrimination and anti-harassment policies -Document all complaints -Investigate all complaints -Discipline/terminate violators

In Summary The 5 greatest liabilities municipalities face can be significantly reduced by taking a proactive - common sense approach to the day to day operations of your town.

You can improve your city’s liability risk by remembering

An ounce of prevention is…? Worth a pound of cure!