60th Annual School for Highway Superintendents

Record Keeping & LiabilityRecord Keeping & Liability

Robert Bambino

NY Municipal Insurance Reciprocal

June 7, 2005

Ithaca College

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

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.

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

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

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

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)

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.)

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

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

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

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?”

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

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

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

Questions?

This Presentation is on NYMIR Web Site:

www.nymir.org

In the Risk Management Section