Municipal Liability Exposures

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Municipal Liability Exposures
NYCOM Gall Training School - 2002

• Melissa J. Freeman
• NYCOM
• Bob Bambino
• NYMIR

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Alcohol Issues

• Parties on Village Premises
• If your municipality is planning on any type
  of party or celebration on the municipal premises
  (i.e. village or city hall) that is going to have
  alcohol you must be careful to limit your
  liability by

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Alcohol Issues

• Determine if you have the appropriate liability
  coverage. Many general liability insurance
  policies (and some umbrella policies) have what
  is known as "Host Liquor Liability" coverage.
  This covers the insured for instances where
  liquor is served, but not sold. Most general
  liability insurance policies include an exclusion
  from coverage for the sale, distributing, serving
  or furnishing of alcohol.

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Alcohol Issues

• Determine your total liability coverage. Most
  municipalities carry between 2 and 5 million in
  liability insurance
• Determine if holding such an event is in the best
  interest of the municipality, its employees and
  residents. While the municipality may have the
  appropriate insurance coverage to hold such
  alcohol related events, it may not be wise to do
  so.

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Alcohol Issues

• Hosting a party or other similar event on
  municipal property when alcohol is served, opens
  the municipality up to substantial legal risk
  which must be carefully considered by the
  municipality and its legal team.

6
Alcohol Issues

• If a party or an event involving alcohol is a
  priority, the municipality can relieve itself of
  liability by holding the event at a restaurant or
  other facility where the attendees pay their own
  way.
• Dram Shop and Liquor Legal Liability coverage is
  available to caterers, restaurants and bars that
  sell alcohol for profit.

7
Alcohol Issues

• If your municipality does choose to host a
  alcohol related event it should also be in
  compliance with the New York State Alcohol
  Beverage Control Act. This act prevents such
  things as
• Service or sale of alcohol to those under the
  age of 21
• Allowing those under the age of 18 from serving
  alcohol to others.

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Alcohol Issues

• Alcohol in Municipal Parks Other Facilities
• Municipalities can control use on facilities
  (parks, pavilions, community meeting rooms) by
  local law or regulation.
• Some prohibit
• Others limit use to certain areas picnic areas
  and community meeting rooms
• If allowed, permits are required

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Alcohol Issues

• Sample Alcohol Use Policy Common Provisions
• Use of alcohol is permitted by special permit
  only.
• Beer and wine in non-glass container are allowed
  in the following areas only ______________
• No person less than 21 years of age may possess
  and/or consume alcoholic beverages.
• If alcohol is being consumed, service of alcohol
  must end one hour before the conclusion of the
  event.
• If a caterer is used to dispense alcohol, the
  caterer must have all required permits and/or
  licenses. In addition, the caterer must submit a
  certificate of insurance.

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Alcohol Issues

• Required Insurance Coverages
• Comm. General Liability- 1 million each
  occurrence/ 2 million aggregate
• Liquor Liability - 1 million
• Workers Compensation
• Municipality shall be an additional insured

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Sexual Harassment Vicarious Liability for
Harassment by Supervisors

• Identifying Sexual Harassment
• Anyone can be a Victim
• Harassment Resulting in Tangible Employment
  Action
• Affirmative Defenses
• Protecting Your Municipality

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Special Events

• Facilities
• Managing Cash
• Risk Management Procedures

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Tangible Employment Actions include (but are not
limited to)

• Hiring and firing
• Promotion/failure to promote
• Demotion
• Undesirable reassignment
• Significant change in benefits and
• Work assignment.

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Affirmative Defenses must include these elements

• The employer exercised reasonable care to prevent
  and correct any harassing behavior and
• The employee unreasonably failed to take
  advantage of preventive or corrective
  opportunities provided by the employer to prevent
  future harm.

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PROTECT YOUR MUNICIPALITY!

• Be sure to identify and train regular supervisors
  AND those who qualify as supervisors under the
  EEOC guidelines
• Distribute anti-harassment policy to all
  employees and maintain proof of receipt file

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• Create workable complaint procedure that makes it
  easy for employees to bring incidents to the
  attention of management
• Have a procedure in place for prompt, impartial
  investigations when complaints are made

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• Confidentiality should be protected to the
  fullest extent possible
• RETALIATION CANNOT BE TOLERATED!

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Anti-harassment policy and complaint procedure
should contain the following

• Clear explanation of prohibited conduct
• Assurance that complainants will be protected
  against retaliation
• Clear, descriptive complaint process with
  accessible avenues of complaint
• Assurance of protection of confidentiality to the
  fullest possible extent

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• Prompt, thorough, and impartial investigation of
  complaints and
• Assurance of immediate, appropriate corrective
  action if it is determined that harassment has
  occurred.

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Inline Skating Skateboard Exposures

• Skating Exposure
• Coverage
• Risk Control Techniques
• Building a Skating Facility

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Inline Skating Exposure

• 3.6 Million Inline Skaters in 1990 36 Million
  in 1998
• Over 102,000 Participant Injuries
• Most common reason for injury - loss of balance
  or striking a stationary object

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Skateboarding

• 7-10 million skateboarders
• 8-10 annual increase in participation
• Over 300 skate parks in use
• Over 54,000 participant injuries a 13 increase
  in injuries
• Most common reason for injury falls from
  irregular surfaces or debris on the riding
  surface

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Insurance Issues

• Public Liability Policies typically include
  coverage for recreational liability exposures
• Some insurers exclude coverage for skateboard or
  inline skating facilities. Others will
  underwrite it for an additional premium
• Insurers periodically exclude coverage for
  participants liability
• Recommendations
• Check with your agent/insurer
• Make sure coverage extends through the Excess
  Policy

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What do Underwriters Consider when Evaluating
Skateboard Parks?

• Size
• Number of participants
• Supervision
• Type and number of ramps
• Fencing/signage
• Loss history
• Use of waivers

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Skateboarding Litigation

• How Litigious are Skateboarders -- Not Very!
• Injuries are usually not serious
• Skateboarding culture injuries are part of
  the sport
• Many participants develop a sense of ownership
  to the parks they helped build
• Survey from California Washington State two
  claims in 20 years of operation.
• NYMIRs Experience
• Very few claims
• Allegations - overcrowding/debris on surface

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Risk Control Techniques

• Building a Skating Facility
• Check local ordinances
• Arrange for adequate space - at least 9,000 sq.
  feet
• Retain an experienced design professional
  contractor. No national standards at this time
• Get certificates of insurance
• Specs should include the maximum number of
  skaters, ramp heights, signage, lighting, fencing
  maintenance
• Compliance with the ADA

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Risk Control Techniques

• Require use of personal protective equipment
  (PPE) by all skaters
• Sign the facility hours of operation, PPE
  requirements, minimum age, sign-in procedures,
  etc.
• Institute a maintenance program that involves
  daily inspections and clean-up schedules
• Consider supervision
• Involve the skating community in planning

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Skating on Existing Facilities

• Choose a safe location
• Check surfaces - smooth, paved vehicle-free
  during skating periods
• Inspect routinely for defects and debris
• Promptly respond to notifications of unsafe
  conditions or unauthorized activities