Municipal Liability Exposures

1. NYCOM Gall Training School - 2002 Municipal Liability Exposures Melissa J. Freeman NYCOM Bob Bambino NYMIR

2. 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:

3. 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.

4. 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.

5. 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.

8. 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

9. 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.”

10. 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

11. 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

12. Special Events • Facilities • Managing Cash • Risk Management Procedures

13. 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.

14. 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.

15. 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;

16. 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

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

18. 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;

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

20. Inline Skating & Skateboard Exposures • Skating Exposure • Coverage • Risk Control Techniques • Building a Skating Facility

21. 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

22. 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

23. 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 participant’s liability Recommendations • Check with your agent/insurer • Make sure coverage extends through the Excess Policy

24. 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

25. 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. NYMIR’s Experience: • Very few claims • Allegations - overcrowding/debris on surface

26. 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

27. 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

28. 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