1. 60 th Annual School for Highway Superintendents Record Keeping & Liability Robert Bambino NY Municipal Insurance Reciprocal June 7, 2005 Ithaca College

2. What We’ll Cover: 1.Insurance Coverage for Highway Employees 2.Claims Reporting 3.Prior Written Notice 4.Sidewalk/Tree Inventories 5.Employee Record Keeping

3. Why this Topic?  Poor record keeping can establish liability  It often implies liability or fault  It creates an appearance of disorganization Why? However … When done properly – it can help prove facts or win a law suit.

4. Leading Liability Loss Exposures Road Maintenance/ Construction Sewer Back-Up Slip/Fall on Roads or Sidewalks Slip/Fall on Ice/Snow Struck Fixed Object (MV accidents) Breach of Municipal Duty Struck by ObjectHit Pothole Water Damage/ Flooding Fall in Sports/Playground

5. 1. Insurance Coverage General Liability Policy  Includes employees as “insureds” for accidents that arise out of employment for the Town. Includes defense and indemnification. Automobile Liability Policy  Anyone using a covered auto with permission Public Officials Policy  Employees as insureds Excess Insurance  Additional limits of coverage above the liability policies

6. 2. Record Keeping: Claims Reporting Contractual Requirements  Report claims (or potential claims) promptly  Forward legal papers immediately  Safeguard damaged property Claims Management  If possible – protect evidence (store or photograph)  Don’t speak with investigators or attorneys unless they are properly identified

7. 3. Prior Written Notice (PWN)  PWN laws require written notice as prescribed in the law to the Town Clerk or Town Superintendent of Highways  They don’t prevent accidents – they help win lawsuits  In general – actual notice isn’t sufficient to create liability (major exception: Town creates the condition)

8. PWN – Record Keeping Superintendent of Highways  Record date, location and reported defect  Refer to Clerk  Keep copy of the notice  Record response (repairs, removal, etc.)

9. What is “Reasonable Time?” “…address the removal of the defect within a Reasonable period of time…”  Nature of defect  Workload  Staff  Budget  Miles of streets/roads Town maintains …ultimately – it’s a question for the jury to decide

10. PWN – Sidewalks: Transferring Liability to Property Owners  Towns can transfer responsibility for sidewalk repair/ maintenance to property owners  Towns can pass tort liability to property owners as well  Local ordinance must specifically mention tort liability – not just repair and maintenance

11. Challenges to the PWN Defense Telephone/ Walk-In Notices  Don’t accept as formal notice  Give complainant a copy of the PWN law  Check out defect regardless Defects in PWN  Doesn’t include a reference to snow and ice conditions  Doesn’t include a reference to the clerk or highway superintendent

12. 4. Sidewalk/Tree Inspections and Inventories Sidewalks  Prioritize in terms of the potential for injury -- location -- severity  Then repair, replace or cordon off Trees  Keep an inspection record -- can be part of supervisor’s daily log/notes  Indicate why tree wasn’t removed  Usual issue if there is a claim: “If you inspected a tree, why didn’t you take it down?”

13. 5. Documentation and Employee Record Keeping Snowplow Operations  Dates, employees (or contractors) and routes  Helps prove what roads were paved – or not paved – why and when Contractors  Maintain contracts and work records  Certificates of insurance also  If Town has additional insured status – notify the insurer if an accident occurs

14. Documentation and Employee Record Keeping  Inconsistency = creates problems  Records are subject to scrutiny during complaints hearings and litigation  Affects wrongful termination claims: -- If fired for cause -- If basis for civil service hearing

15. Employee Record Keeping  Records must reflect actual performance -- if employee has weaknesses/performance issues – personal reviews must reflect the issues -- if late, absent/ time sheets must reflect it -- if counseling sessions held – memorialize the discussion  E-mail and Internet Sites -- permanent record

16. Questions? This Presentation is on NYMIR Web Site: www.nymir.org In the Risk Management Section