-Mike Hammond
Vehicular Pursuit-Related Collisions
Unless your police department has imposed a total ban
on vehicle pursuits, sooner or later one of those pursuits will likely end
with the fleeing suspect crashing into an uninvolved motorist or possibly
even a pedestrian. Since the fleeing suspect usually has no insurance and
little money, these tragedies can result in the victim or his family seeking
compensation from the municipality through a lawsuit.
As tragic as some of these outcomes can be, law
enforcement is often reluctant to accept liability for these collisions
when, from their perspective, the fleeing suspect's reckless driving and
unlawful flight caused the damages and/or injuries. If the suspect had
stopped, he would not have been pursued. But, without being pursued, he
would not have stopped. The fleeing suspect presents a danger to the public
in general and must be apprehended.
In defending itself against a pursuit-related claim,
the municipality will likely face the hurdle of the sympathetic plaintiff.
When a fleeing suspect crashes his vehicle into an innocent third party who
dies leaving a spouse and children, the jury will generally be sensitive to
the loss of the surviving family members. Additionally, the community
backlash from these situations can be significant, not to mention the damage
to property involved in the collision.
Given the sympathies favoring the innocent third
parties in this situation, it is important that municipalities have a well
planned risk management approach in order to avoid liability. In a recent
article published in the October 2002 issue of Public Risk, the
author David N. Lesh offered five straightforward steps for reducing
liability from pursuit-related collisions. Mr. Lesh, a former prosecutor, is
an attorney operating his own law enforcement consulting and law practice.
The following is a summary of the advice he offered:
Step One: Adopt a Sound Pursuit Policy
Every police department needs to have a written policy
governing pursuits. An agency without a pursuit policy leaves itself open on
a variety of issues. The department will be criticized for failing to give
officers guidance on what factors to consider when making the critical
decisions to begin, continue or break off a pursuit. Since courts have come
to expect the law enforcement agencies to have written policies in place, an
agency without a sound written pursuit policy will simply have a more
difficult time defending itself.
Step Two: Conduct Periodic Reviews of Your Policies
No police policy should be adopted and then left to
collect dust. A pursuit policy that does not evolve with changes in law,
with changes in technology and with changes in law enforcement practices
quickly becomes outdated. Departments should encourage officers to bring
errors or problems with the policy to the attention of supervisors. In this
way, problems can be spotted and corrected early.
Step Three: Implement On-Going Training
Officers should receive some type of pursuit-related
training each year. This can be accomplished through something as simple as
a roll call training session that reviews the department's pursuit policy,
including the factors officers should consider when deciding to initiate,
continue or terminate a pursuit. With this instruction, officers receive
annual reminders that pursuits are an inherently dangerous activity and can
end tragically. The value of providing annual training in defending a
lawsuit cannot be overstated.
Step Four: Review New Products, Techniques and
Technologies
The police department should conduct periodic reviews
of available devices and techniques used to prevent and end pursuits. A
municipality can be best served when a supervisor can testify he reviews new
products and ideas as they become available and he utilizes those procedures
that are effective, affordable and practicable. Police departments should be
familiar with products and techniques designed to safely stop pursuits. If
they are not using those products or techniques, it is important they are
familiar with the technology and provide a rational and defensible reason
why they are not using them.
Step Five: Thoroughly Investigate Pursuit-Related
Collisions
A complete and thorough investigation of these
collisions will be of great assistance in defending any action against the
police department. The investigation will need to answer how far from the
fleeing vehicle the closest police car was during the pursuit when the
collision occurred. Having independent witness statements about the distance
could also prove helpful. This information will help counteract the claim
that police pushed the fleeing driver into the collision by pursuing too
aggressively or at too close a distance.
Other Considerations:
According to Chief Douglas Knight of the Vandalia
Police Department, the great dilemma for Police Chiefs and their departments
is the apparent absence of clear public and political consensus about
whether the police should pursue or not, and if so, for what offenses and
under what conditions. As police pursuits continue to be a part of law
enforcement, it is important the police department document and review every
police pursuit, not just those that end in pursuit-related collisions. This
review will determine compliance with the department’s policy and allow for
a "lessons learned" approach. Each review should address technological or
communication problems, ability to control the number of external police
officers who join the pursuit and supervisory involvement in decisions to
continue the pursuit.
No one can predict when a vehicular pursuit will end
in a tragedy. However, with a minimum amount of time and resources, any law
enforcement agency can reduce its liability from police pursuits.
Special thanks to Vandalia Chief of Police Douglas
Knight who contributed to this article.
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- Dinsmore &
Shohl
Ohio Supreme Court Again Hits
Employers
The Ohio Supreme Court continued its assault on Ohio
employers with two more workers' compensation decisions which could greatly
impact premiums in the State of Ohio. In the first decision, State, ex
rel. Thomas v. Industrial Commission (2002), 97 Ohio St.3d 37, the Court
ruled the loss of use of one arm entitles a worker to a statutory permanent
total disability award. In Thomas, the claimant had been awarded a
scheduled award under Section 4123.57(B) for the loss of use of his right
arm. Subsequently, the claimant requested a declaration of statutory PTD,
arguing that by definition, because the loss of use of his arm included the
loss of use of his hand, he had in essence lost the use of two body parts,
thereby triggering the declaration of statutory PTD. The Ohio Industrial
Commission rejected that argument, finding the intent of the statute was to
require the loss of separate hands or separate arms. However,
in a 4 to 3 opinion, the Ohio Supreme Court ruled that loss of use of the
arm, which does include the hand of that arm, constitutes a statutory PTD.
Consider the potential new liability: Your 30 year-old
employee is injured, and loses the use of his or her arm. Under 2002 rates,
the employee receives a scheduled loss award of 225 weeks, totaling
$141,300. Under the Thomas decision, the employee is now also
statutorily PTD (even if the employee actually returns to work for you or
someone else), entitling the employee to a weekly check for life. With a
life expectancy of 50 years, and, assuming he/she qualifies for the maximum
rate, this means a payment of $32,656 per year for 50 years, totaling over
$1,600,000.
In the second decision, Stat, ex rel. McCoy
v. Dedicated Transport, Inc. (2002), 97 Ohio St. 3d 25 (actually a
consolidation of two similar cases), the Ohio Supreme Court ruled that
although termination of employment due to either "abandonment," or violation
of a written work rule, does bar the receipt of temporary total disability
benefits, the bar is not complete. Rather, the Court held that where such a
claimant re-enters the workforce following the termination, and, due to the
industrial injury, thereafter becomes temporarily and totally disabled from
the new job, temporary total compensation will again become available. In
the Ohio Supreme Court's view, in its lengthy series of prior decisions
affirming the termination of a claimant's employment as a bar to further
temporary total benefits, none of the claimants had returned to the
workforce following the termination, but prior to having become disabled. In
future cases, the court held such a termination would not constitute a
permanent bar to temporary total benefits, but instead will only operate as
a bar up until the time the claimant has returned to the job market with a
new employer.
In other words, suppose your employee has a workers'
compensation claim for a low back injury and as a result, is on "light
duty." The employer then discovers the employee is violating a written work
rule concern- ing the use of alcohol or drugs on the job and terminates the
employee. Even if the employee was still temporarily and totally disabled
(but no longer eligible for light duty due to being fired), temporary total
disability benefits would not be payable. However, if that same
injured employee goes out and finds another job, but then has a "flare-up"
of his low back pain and goes off work, temporary total disability benefits
could be reinstated and charged against the original employer's risk.
In each of the above cases, the Ohio Supreme Court has
issued decisions which can greatly affect the amount of compensation to be
paid in a claim, and in both situations, once the accident occurs, the
employer has little or no ability to control those aspects of the claim that
are giving rise to the increased exposure. As such, unless and until the
Ohio legislature acts to restrict such rulings by the Supreme Court, Ohio
employers will continue to pay increased workers' compensation premiums.
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- Craig Blair
During the last eight years of handling claims for
MVRMA, I have heard lots of different stories and perspectives on how or
why an accident occurred. When handling a claim for a city striping one of
its roads, the third party claimant stated, "I wouldn't have driven over
the line if I wasn't distracted by those colored signs on the truck and
those cones they put on the road." Of course, the signs on the truck
cautioned drivers about the lines the city was painting on the roadway.
Another time, a claimant explained, "I was trying to stop, but the sign
was in the way." Yes indeed, folks, the sign was a stop sign. When
explaining to another claimant who had damaged his car by driving onto a
concrete median that it was there to prevent vehicles from traveling into
oncoming traffic, he exclaimed, "But there wasn't any traffic coming, so I
wouldn't have had any damages if it weren't for the median!" It's hard to
argue with that type of logic. Here are a few more examples taken from
actual accident reports (reprinted from First Draft):
1. I collided with a stationary truck coming the other
way.
2. Coming home, I drove into the wrong house and
collided with a tree I don't have.
3. I had been driving for 40 years when I fell asleep
at the wheel and had the accident.
4. The pedestrian had no idea which way to run so I
ran over him.
5. I pulled away from the side of the road, glanced at
my mother-in-law and ran over the embankment.
The point to be made is everyone perceives things
differently. It's a natural reaction to rationalize one's behavior so as to
avoid or minimize the blame associated with the accident. As a city
employee, it is your job to provide city services and resolve problems as
they occur. When a resident incurs damages due to a "perceived" city problem
(i.e., pothole, sewer backup, etc.), he expects the city to accept
liability. Because the city is held to a legal standard of maintenance and
repair of certain problems when put on notice, liability is not easy to
determine.
When a city employee first arrives at the scene of an
incident and emotions are running high, he should simply state what he can
do for the individual and refer him to the appropriate city department or
MVRMA for any questions concerning damages or liability. Our members'
employees should be free to focus on their jobs without having to determine
"who's at fault." That's MVRMA's job.
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-Starr Markworth
According to the National Safety Council, in
2001,30% of all fatalities in government services and the
majority of fatalities for workers 35-44 occurred on the road. Since
workers in that age group make up a large segment of our city employees,
driving safety becomes extremely important.
With winter and severe weather on the way, it’s time
for our city employees to buckle down and make driving safety a top
priority. Winter road maintenance and snow plowing create unique safety
hazards inherent to public service employees. As we approach another season
of snow and ice, it’s important to note:
l Motor vehicle accidents are the number 1 cause of death in winter
storms.
l The number 1 cause of winter driving accidents is driving too fast.
Knowing your vehicle’s stopping capability is a key to
safe driving. Stopping any vehicle on snowy roads may require two times the
normal stopping distance, while icy conditions may require three times the
normal stopping distance. Stopping a loaded snowplow, which may
weigh up to 50,000 pounds, will be an extremely
difficult task!
Whether leaving home or the office, before you drive
in severe winter weather, please take the time for the following few safety
precautions:
l Let your vehicle warm up for a few minutes.
l Clean all windows before
you begin to drive.
l Make sure all lights work
and are clear of ice and/or snow.
l Clean ice and snow off
windshield wiper blades.
l Check the horn, adjust mirrors
and test brakes.
MVRMA has several winter safety videos in its training
library. Please contact me at 937/438-8878 or by email at smarkworth@mvrma.com
if you need more information or would like to borrow videos.
Do your part to make driving safety a priority for
your city.
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Risk Management Perspective on Using Outside Contractors
Janitorial services, accounting services, building
contractors, plant and vegetation specialists, office equipment maintenance
engineers, building contractors and environmental consultants are just some
of the examples of outside contractors being used by public agencies today.
The use of outside contractors allows professional work to be completed
without the continuing expense of payroll and benefits or the initial
expense of hiring, providing equipment and training. The trend of using
outside contractors continues to increase due to the success of using such
vendors. Although the use of outside vendors creates an increase in
exposure, it can be easily reduced by using proper risk management
techniques.
First, require a claims summary of the outside
contractor. Ask if he has had significant losses. Determine his workers’
compensation modifier. Any vendor with a workers’ compensation modifier
greater then 1.0 should be eliminated. The loss history of a firm is a
footprint of its safety program. Do not expose your community to an unsafe
contractor.
Next, have a Safety Policy for Contractors which
includes all aspects of a sound safety program. Some of the key ingredients
to be incorporated into this policy are a clearly defined Purpose, Training
Requirements, Explanation of Responsibilities, Contractor Safety Program
Requirements, Insurance Requirements and Record Keeping Requirements.
Sound risk management practice incorporates removing
the risk. Doing business with safe, conscientious vendors will weed out a
significant part of the problem. Requiring the vendor to have a complete
safety program should further reduce the risk of loss. But, even the best
loss prevention techniques may fail at sometime. To assure adequate risk
transfer is in place, a Hold Harmless Agreement should be implemented with
the vendor. On page 6:03:26 of the MVRMA Handbook, you will find
three acceptable Hold Harmless Agreements. As its name implies, a Hold
Harmless Agreement transfers the risk of loss by the municipality back to
the contractor. It would be the contractor’s responsibility to secure
adequate coverage for your city and provide defense costs as well.
But, if all else fails, and a MVRMA member is held
legally liable for a contractor induced loss, MVRMA has its own general
liability and umbrella coverage in place.
Outside contractors are useful tools in providing
service to our communities. By following sound risk management techniques,
you will always grab the handle of this tool, and never the blade.
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Coming Events
December 16
MVRMA Quarterly Board Meeting and Holiday
Luncheon
MVRMA Offices
December 25
January 1
MVRMA Offices Closed
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If you spend most of your workday staring at a
computer monitor, you may notice an abnormal number of red blood vessels in
the whites of your eyes. Prolonged work at a computer is a strain on your
eyes and can lead to engorged blood vessels, creating the illusion of new
blood vessels. Dry, itchy eyes are another sign of this type of eye strain,
referred to as computer-vision syndrome. Here are several tips to avoid the
problem:
1. Rest your eyes regularly. Take breaks away from the
computer.
2. Blink frequently to keep moisture moving to your
corneas.
3. Reduce the glare from your monitor by adjusting the
light around your desk, or use a screen filter.
4. Place your monitor at or just below eye level.
5. Keep the distance between your eyes and the monitor
about the same distance as you would while reading a book.
6. Check the prescriptions of your eyeglasses or
contacts regularly to be sure they are correct.
7. Upgrade to a liquid-crystal-display monitor or
another model with a high refresh rate that flickers less.
Adapted from Consumer Reports on Health.
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First Aid Kits and Medical Supply Stations of any kind should not be
permitted in lunch rooms or in areas where food is consumed. According to
OSHA, treating injured workers where food is consumed exposes other workers
to the possibility of blood-borne pathogen contamination. If your city has a
first aid station located in an area where food is consumed, please consider
relocating it to reduce the risk of contamination.
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