FYI:

-Mike Hammond

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:

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.

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.

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.

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.

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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Counselors' Comments

 - 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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The Claims File

- 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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Loss Control Lowdown

-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 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 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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Brokers Beat

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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Avoiding Computer Eye Strain

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.

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Important Notice!

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