60 th annual school for highway superintendents record keeping & liability robert bambino ny...
TRANSCRIPT
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60th Annual School for Highway Superintendents
Record Keeping & LiabilityRecord Keeping & Liability
Robert Bambino
NY Municipal Insurance Reciprocal
June 7, 2005
Ithaca College
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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
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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 factsor win a law suit.
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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 Object Hit Pothole
Water Damage/ Flooding
Fall in Sports/Playground
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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 PolicyAnyone using a covered auto with permission
Public Officials Policy Employees as insureds
Excess InsuranceAdditional limits of coverage above the liability policies
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2. Record Keeping: Claims Reporting
Contractual RequirementsReport 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
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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)
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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.)
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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
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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
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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
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4. Sidewalk/Tree Inspections and Inventories
SidewalksPrioritize in terms of the
potential for injury
-- location
-- severity Then repair, replace or
cordon off
TreesKeep 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?”
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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
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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
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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
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Questions?
This Presentation is on NYMIR Web Site:
www.nymir.org
In the Risk Management Section