60 th Annual School for Highway Superintendents

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

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

3. Why this Topic? • Poor record keepingcan 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

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. 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 2. Record Keeping: Claims Reporting

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

9. What is “Reasonable Time?” “…address the removal of the defect withina 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. 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 Challenges to the PWN Defense

12. 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?” 4. Sidewalk/Tree Inspections and Inventories

13. 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 5. Documentation and Employee Record Keeping

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