Liability Risk Management for Local Government Managers

1. The Municipal Excess Liability Joint Insurance Fund Risk Management for Local Unit Managers & Supervisors Draft Dated: October 7, 2015

2. DISCLAIMER This presentation is designed to provide a general understanding of the legal principles pertaining to the liability of local governmental managers and supervisors. These principles are subject to numerous exceptions and are highly fact sensitive. Seek the advice of your attorney to evaluate any particular case or circumstance.

3. NJ Local Government Claims $400 Million $50 per capita Workers’ Comp 50% Liability 40% Property 10%

4. Frequently Asked Questions Question: When are you on duty?

5. A Local Official or Employee is on Duty When: 1. The official or employee was acting in a matter in which the local unit has an interest, and 2. The official or employee was acting in the discharge of a duty imposed or authorized by law, and 3. The official or employee was acting in good faith Judge Pressler Golaine v Cardinale, 1976

6. Are You on Duty If? You are returning home from personal business are injured while helping other passengers in a train wreck?

7. Are You on Duty If? You are at home when you hear of a major disaster half way across the state. Without checking with the Superintendent, you decide to self deploy and are injured.

8. WORKERS’ COMPENSATION NJ Lost Time Accidents per 100 employees Industry LT Cases Finance & Insurance 0.3 Wholesale, Retail Trade 2.3 Manufacturing 2.6 Mining 2.8 Construction 3.1 Transportation 4.0 State Government 4.3 Local Government 4.3 All NJ Employees 2.3

9. Accidents by Department Public Works 46% Police 34% Fire 9% EMS 4% Administration 4% All Others 3%

10. Employee Accident Rate Lost –Time Accidents per 100 employees 5.73 2.50 1991 2015

11. Safety Training • Departments that are up to date on safety training average 46% fewer accidents • MEL Safety Institute • On line training

12. NJ Workers’ Compensation Adopted 1911 No Fault Coverage for Injured Employees Governor Woodrow Wilson

13. NJ Workers’ Compensation Adopted 1911 Normally Workers’ Compensation is the employee’s sole recourse against the employer unless the employer intentionally caused the accident. Governor Woodrow Wilson

14. NJ Workers’ Compensation Adopted 1911 Necessary Medical Care Temporary Disability Benefits Permanent Disability Awards Governor Woodrow Wilson

15. Frequently Asked Questions Question: When during the workday does coverage begin? Generally, coverage begins when an employee arrives at the employer’s premises

16. Frequently Asked Questions Question: When during the workday does coverage begin? Employees are covered while traveling on business to places other than their regular workplaces.

17. Frequently Asked Questions Question: Are volunteers covered for Workers’ Compensation? Normally, volunteers are not covered except certain volunteers that are covered under a special provision.

18. Frequently Asked Questions Question: Is an employee covered by Workers’ Compensation while operating an employer owned vehicle while on personal business? No - Only if on governmental business.

19. Frequently Asked Questions Question: Is an employee covered by Workers’ Compensation while operating a privately owned vehicle on governmental business? Yes - The coverage trigger is being on the employer’s business.

20. Coordinated Claims Control Immediately report all claims Use the most skilled physician Maintain contact with the injured employee Work with adjusters to reduce fraud Return the employee back to work as quickly as possible

21. Case Studies “Those who cannot remember history are condemned to repeat it.” George Santayana Life of Reason 1905 George Santayana (1863 – 1952)

22. WC Case Study # 1 A police officer was injured at home while cleaning his weapon.

23. WC Case Study # 1 Covered Not Covered

24. WC Case Study # 1 Covered Not Covered

25. WC Case Study # 1 In Kossack v Bloomfield, the court ruled that while the officer was not at work, his activity met the three tests.

26. WC Case Study # 2 A municipal employee was making his rounds in a municipal owned vehicle when he passed the post office and decided to pick up his mail. While returning to his vehicle, he slipped on the driveway and was injured.

27. WC Case Study # 2 Covered Not Covered

28. WC Case Study # 2 Covered Not Covered

29. WC Case Study # 2 In Jumpp v Ventnor, the court ruled that the employee was not covered because this was a personal errand. Therefore, the employee was not acting in a matter in which the local unit had an interest, and was not discharging any duty imposed or authorized by law.

30. WC Case Study # 3 A police officer was required to commute in a marked car. One morning, after a storm, the officer slipped while shoveling out the car before leaving for work.

31. WC Case Study # 3 Covered Not Covered

32. WC Case Study # 3 Covered Not Covered

33. WC Case Study # 3 In Perry v Dept. of Law & Public Safety the court ruled that the officer was not yet on duty because the officer would have had to shovel the snow anyway to get to work.

34. WC Case Study # 4 A municipal clerk arrived at the office and found that the parking lot was full. In this situation, employees were permitted to park in a nearby county owned and controlled lot. While crossing the street, the officer was injured by a passing car.

35. WC Case Study # 4 Covered Not Covered

36. WC Case Study # 4 Covered Not Covered

37. WC Case Study # 4 In Hersh v Morris County, the court ruled that normally coverage only begins when the employee reaches the door. Accidents in parking lots are only covered if the parking lot is controlled by the employer.

38. WC Case Study # 5 A volunteer fireman was injured playing softball against the police department in a game organized to support a police and fire department charity.

39. WC Case Study # 5 Covered Not Covered

40. WC Case Study # 5 Covered Not Covered

41. WC Case Study # 5 In Dowson v Lodi, the court ruled that while injuries at sports events are usually not covered for workers’ compensation, there is a special statute for firefighters that provides coverage if the sports event was a fund raiser for the benefit the department in some fashion.

42. Auto Liability In 1925, the New Jersey Supreme court held that people could sue government and its employees for auto accidents in the same fashion as everyone else.

43. Auto Liability Case Study MOTORIST DIES IN CRASH WITH POLICE CAR Officer driving at 90 MPH in a 50 zone

44. Auto Insurance Coverage Generally, auto liability policies follow the ownership of the vehicle.

45. Law Against Discrimination (LAD) Adopted 1945 • Race • Age • Sex • Disability • Sexual Orientation • Employment • Housing • Public Accommodations • Contracts Governor Walter E. Edge 1917-19 1944-17

46. Law Against Discrimination (LAD) 1990 Amendment “All remedies available in common law” Fee Shifting Governor James Florio 1991- 95

47. Equal Opportunity

48. Lehmann v. Toys R Us (1993) Employer responsible for the sexual harassment committed by its supervisor unless it has adopted an effective anti-harassment program. Judge Garibaldi

49. Lehmann v. Toys R Us (1993) Policies Prohibiting Discrimination and Harassment  Complaint Structures (Formal & informal)  Training: (mandatory for management & provided to all employees)  Monitoring Mechanisms  Unequivocal Management Commitment Judge Garibaldi

50. Lehmann v. Toys R Us (1993) The Lehmann decision extends to all harassment in the workplace based on an employee being apart of a protected class. Examples: race, national origin, disability and sexual orientation. Judge Garibaldi