Municipal Liability Exposures

Melissa J. FreemanNYCOM

Bob BambinoNYMIR

NYCOM Gall Training School - 2002

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:

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.

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.

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.

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.

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.

Alcohol IssuesAlcohol 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

Alcohol IssuesSample 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.”

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

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

Special Events Facilities Managing Cash Risk Management Procedures

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.

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.

PROTECT YOUR PROTECT YOUR MUNICIPALITY!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;

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

Confidentiality should be protected to the fullest extent possible

RETALIATION CANNOT BE TOLERATED!

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;

Prompt, thorough, and impartial investigation of complaints; and

Assurance of immediate, appropriate corrective action if it is determined that harassment has occurred.

Inline Skating & Skateboard Exposures

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

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

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

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 liabilityRecommendations

Check with your agent/insurer Make sure coverage extends through the

Excess Policy

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

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

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

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

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