June 2014 - Issue 28

Educational Forum: Ride the Wave of Risk Management

Liability Associated with Response to Inoperable Traffic Signals

Safety Week Event Held at Rancho Palos Verdes

How Outdated is Your Harassment Prevention Policy?

Design Immunity Defense Fails Absent Evidence of Discretionary Approval

19th Annual California JPIA RMEF

News: Worthy

Educational Forum: Ride the Wave of Risk Management

From October 29 - 31 the California JPIA and its members from all over the state will travel to Santa Barbara to participate in the 19th Annual Risk Management Educational Forum.

This year’s Forum theme, "Ride the Wave of Risk Management," reflects the changing contours of our legal, physical, and organizational environments that the Authority and its members face each year. Whether you are just learning to paddle or know how to catch a wave, join the Authority in Santa Barbara where our aim is to get you angling along and riding the wave of risk management.

"What better place to strengthen your business and risk expertise than at this year’s educational forum," said California JPIA CEO Jonathan Shull. "Continually striving to offer innovative solutions for member risk exposures and losses, the California JPIA is progressive in its approach to risk management and training, including the annual educational forum."

This year’s keynote speaker is Lizz Pellet, a Fellow in Organizational Transformation from Johns Hopkins University and Vice President of Educational Sales at The Sourcing Institute. A well-known thought leader in talent management, for many years Lizz has been educating Human Resource professionals on culture and employment branding and teaching recruiting professionals how to use social media platforms in their recruiting efforts. The author of "The Cultural Fit Factor, Creating an Employment Brand that Attracts, Retains, and Repels the Right Employees," Lizz brings her high energy use of humor and relevant business content to focus on the importance of work culture and employment branding. 

The Forum kicks-off on Wednesday with the Opening Session: Building a Successful Risk Management Program

Thursday’s breakout sessions include: Ethics for Elected Officials, California Legislative Update, Competent Park and Playground Inspections, ADA Compliance, Workers’ Compensation Case Law Update, Managing Sidewalk Exposures, Cyber Threats, Public Records Act Requests, Conducting Accommodation Meetings, Hazardous Recreational Activities, Document Retention, Mock Deposition, Liability Case Law Update, Conducting Internal Investigations, and Participant Waivers. 

The Forum wraps up on Friday with the Closing Session: Building a Successful Culture and Succession Planning. Lizz Pellet will be joined by organizational and leadership development consultant Doris Sims as they present how to create a successful organizational culture, maintain it, and plan ahead by having your future leaders already on board.

Registration is free to California JPIA members. Non-member registration fee is $450.00. Click here for Forum information and to register.

News: Worthy

Liability Associated with Response to Inoperable Traffic Signals

by Alex Mellor, Risk Manager

The Authority is frequently contacted by members requesting information on how best to respond to unexpected blackouts at signalized intersections.

Generally, there seem to be two schools of thought on the subject: 1) do not place temporary stop signs at intersections with inoperable traffic signals and rely on the agency’s statutory immunity from liability if an accident were to occur, or 2) place temporary stop signs to try to prevent accidents.

Some statutes and case law indicate that public agencies are immune from liability if they do not place temporary stop signs at intersections with inoperable traffic signals. California Vehicle Code Section 21800 (d) (1) places the responsibility on the driver to stop at intersections with inoperable traffic signals and proceed with caution when it is safe to do so. And, relevant case law has shown that public agencies enjoy immunity (under Government Code Section 830.4) from liability in situations where power has been interrupted and no temporary stop signs have been placed (Chowdury v. City of Los Angeles, 38 Cal.App.4th 1187).

Therefore, the Authority’s general recommendation is to avoid placing temporary stop signs at inoperable traffic signals.

However, we recognize that some members may choose to place temporary stop signs in an effort to prevent accidents from occurring. If your agency chooses to do that, the following guidelines are offered:

  1. Develop and implement a written policy for how to deal with this issue, and consult the agency attorney in its drafting. The policy should specifically state that the adopted procedures are the product of the member’s discretion and desire to prevent accidents from occurring.
  2. Temporary stop signs should be arranged in such a way that it is clear to the motorist when and where to stop. Indiscriminate placing of stop signs has the potential to confuse motorists and expose the agency to liability.
  3. In placing temporary stop signs, it is important that a conflict is not created when the power is restored. To avoid this conflict, proper procedures should be in place to manually place the signals in "flashing red" mode prior to placing the signs. When the power is restored, signals will flash red until they are reset at the time the temporary stop signs are removed. If the signals cannot be set to flashing red, temporary stop signs should not be placed.
  4. If the agency chooses to place temporary stop signs, but does not have enough signs to address every intersection, the agency should prioritize its intersections to determine which ones present the greatest risk to drivers. This analysis should consider traffic volumes as well as the speed of vehicles that might enter the intersection because drivers are unaware of their responsibility to stop.

If you have questions or concerns regarding this issue, please contact your Regional Risk Manager for further information.


Re: Members

Safety Week Event Held at Rancho Palos Verdes

by Melaina Francis, Risk Manager

Full steam ahead is the best way to describe the Safety Committee that was newly formed at the City of Rancho Palos Verdes. The safety and health of the city’s employees is the first consideration in every aspect of the Safety Committee. The Safety Committee meets monthly. Safety Committee members include employees and management from all city departments. Prior to each meeting the Committee solicits safety suggestions from all employees. During the meeting committee members review and implement solutions to minimize workplace hazards, workplace injuries, and/or workplace illnesses.

The Committee is committed to getting things done! The Safety Committee has implemented a vehicle inspection program; updated the city’s AED program and fire extinguisher inspections; identified first-aid and evacuation locations; implemented workplace safety programs; facility inspections; and improved park and playground inspections – all in the last year. 

The Safety Committee created a weeklong safety event that took place May 12 – 15, 2014. The event focused on health and safety activities. Nearly every staff member participated in one or more activities including: hands-on live fire extinguisher training provided by Los Angeles County Fire Department; earthquake preparedness; "Deskercise" and "BackSafe" stretching activities; a Tai-Chi instructor led participants to their inner Zen; and trail safety information was provided by park rangers. 

Recognizing the importance of teamwork, the Safety Committee conducted teambuilding events one of which was a game called "Waiter, Waiter." Teams were divided at each end of a concourse. Carrying trays with water pitchers and cups, team members raced (safely!) from one end to the other with the winning team emptying their water pitcher at the end of the concourse without spilling along the way. The teams were competitive and the event was deemed a success.

The Safety Committee received kudos from staff: "I am really impressed with all of the programs the safety committee is implementing. Thanks again for a great event. I now see the value in the safety practices the Committee has put in place"; "I never had the opportunity to use a fire extinguisher before. Thank you for taking the mystery out of how to safely operate a fire extinguisher. I stopped by Costco on my way home and stocked up – and now I feel comfortable if I ever have to use one."

If you are interested in learning more about the activities or would like a copy of the Deskercise PowerPoint presentation please contact Rosalee Wood of Rancho Palos Verdes at RosaleeW@rpv.com.

Legal Matters

How Outdated is Your Harassment Prevention Policy?

by Kelly A. Trainer, Burke, Williams & Sorensen, LLP

A strong harassment prevention policy is one of the key components to the prevention of harassment in the workplace. It is also crucial in the defense of harassment claims. Under California law, an employer may limit damages under the avoidable consequences doctrine by establishing that it took appropriate steps to prevent and address harassment. As part of this defense, the employer must:

  1. Establish that it adopted appropriate harassment prevention policies and communicated essential information to employees;
  2. Ensure a strict prohibition against retaliation for reporting alleged policy violations;
  3. Ensure that reporting procedures protect employee confidentiality as much as is practical; and
  4. "Consistently and firmly" enforce anti-harassment policies.

The law surrounding workplace harassment is constantly evolving. As an unfortunate result, agencies’ harassment prevention policies are often out of date. For example, here are a few of the more recent changes to California’s Fair Employment and Housing Act ("FEHA"):

  • "Military and Veteran Status" was added as a protected category on January 1, 2014 by Assembly Bill 556.
  • Effective January 1, 2014, Senate Bill 292 amended the definition of harassment to clarify that sexual harassment does not need to be motivated by sexual desire.
  • Assembly Bill 2386 revised the definition of "sex" for purposes of discrimination to include breastfeeding and related medical conditions. Effective January 1, 2013, this revision also included a mandatory update to the Discrimination and Harassment Notice.
  • Effective January 1, 2012, "genetic information" was added to the FEHA’s list of protected categories by Senate Bill 559.
  • Also effective January 1, 2012, "gender expression" was added to the protected categories by Assembly Bill 887. That same bill also provided that employees must be permitted to dress consistently with both the employee’s gender identity and gender expression.

All agencies are encouraged to review their harassment prevention policy annually and coordinate with legal counsel and/or their Regional Risk Manager for any necessary revisions. Agencies are also reminded that the agency’s policy should be provided to employees who attend harassment prevention training. It is strongly recommended that the policy include an acknowledgement of receipt for employees to complete and return. Finally, agencies should also confirm that the most recent workplace notices are posted in all worksites. 

The Court Report

Design Immunity Defense Fails Absent Evidence of Discretionary Approval

In Martinez v. County of Ventura, published April 8, 2014, the Second District Court of Appeal, Division Six, reversed a defense jury verdict based on the defense of design immunity, concluding the evidence was insufficient as a matter of law to support the jury's finding that the immunity applied. The plaintiff was injured when his motorcycle struck a berm abutting a raised drain -- a "top-hat drain system." He alleged the top-hat drain system was a dangerous condition of public property. The defendant asserted design immunity, based on the county's road maintenance engineer's testimony that he "probably" approved the design of the drain. But the evidence established that the installation of the drain system was a maintenance project, for which no engineering design plans were prepared; the systems were built "in the field" without plans or any scientific or engineering analysis. The maintenance workers built and installed the drains in the field as they saw the need for them.

To prove design immunity, the entity must show that the design was approved in advance by the public entity's legislative body, or by another body or employee exercising discretionary authority to give approval; or where the plan or design is prepared in conformity with standards previously so approved. The appellate court ruled that there was no evidence that the county or an employee approved the top-hat drain system before it was installed. There was no design for the drain systems in advance of construction, the court ruled, so there was nothing to approve. Further, even if there had been a design to approve, the county presented no evidence that the person whom the law authorized to approve the design, the county road commissioner, had delegated authority to the engineer who approved the drains; or that the commissioner had the authority to delegate that power. The public entity must show a basis in law for delegation of authority. The court rejected the theory that discretionary approval may be implied from repeated use of the design for 25 years.