In This Issue
The Local Government Liability Balancing Act
Sewer Backup Liability Coverage
Q. What year was the Tennessee Governmental Tort Liability Act passed by the state legislature?
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Message from the President
It is hard to believe that the holidays are here. As we prepare to celebrate Thanksgiving, here is some Thanksgiving trivia you can share with your friends and family, courtesy of www.goodhousekeeping.com.
The first Thanksgiving was actually a three-day celebration.
Today, Thanksgiving takes place on one day — maybe two if you count Black Friday. But that wasn't enough for the original Pilgrims. In November 1621, the settlers' first corn harvest proved successful, and Gov. William Bradford invited the Plymouth colonists' Native American allies to enjoy the fruits of their labor. Members of the Wampanoag tribe came bearing food to share, and as they joined the Pilgrims, the revelers decided to extend the affair.
The woman behind "Mary Had a Little Lamb" is also responsible for Thanksgiving's recognition as a national holiday.
After years of persistent lobbying, writer and editor Sarah Josepha Hale convinced President Abraham Lincoln to officially declare Thanksgiving an annual national holiday. The author also founded the American Ladies Magazine, which promoted women's issues long before suffrage. She wrote countless articles and letters to persuade the president to recognize the holiday federally, which she believed could help unify the Northern and Southern states amid gathering tensions and divisions. Hale kept at it, even after the Civil War broke out, and President Lincoln actually wrote the proclamation just a week after receiving her last letter in 1863.
The first Macy's Thanksgiving Day Parade didn't feature any balloons.
If you can't imagine the Macy's Thanksgiving Day Parade without giant floats featuring your favorite characters, you'd probably barely recognize the first parade in the early 1920s. It did have puppets riding the floats, as well as singers, celebrities and, of course, Santa Claus. And when the Thanksgiving parade made its big debut in 1924, it did have something that might be even crazier than balloons: animals from the Central Park Zoo.
A Thanksgiving mix-up inspired the first TV dinners.
In 1953, a Swanson employee accidentally ordered a colossal shipment of Thanksgiving turkeys (260 tons, to be exact). To get rid of them all, salesman Gerry Thomas took inspiration from the prepared foods served on airplanes. He came up with the idea of filling 5,000 aluminum trays with the turkey — along with cornbread dressing, gravy, peas and sweet potatoes to round out the meal. The 98-cent meals were a hit, especially with kids and increasingly busy households.
The turkeys pardoned by the president have gone on to do some pretty cool things.
President George H.W. Bush pardoned the first turkey in 1989 after he noticed the 50-pound bird at his official Thanksgiving proclamation looked a little antsy. Every president has upheld the tradition to this day. But what happens to the lucky bird that lives to squawk another day? In 2005 and 2009, the pardoned turkeys went to Disneyland and Walt Disney World to serve as grand marshals in their annual Thanksgiving parades.
Only male turkeys actually gobble.
If you learned in preschool that a turkey says "gobble, gobble," that's only about half true. Only male turkeys — appropriately named gobblers — actually make the sound. Female turkeys cackle instead. So if you're trying to figure out whether a turkey's a male or a female, just wait until they open their beaks.
Regardless of whether you have turkey, ham or something else, we hope you enjoy your Thanksgiving!
All the best,
Dawn R. Crawford
Holiday parades are a time-honored tradition for many cities and towns. It is a time for your community to come together and celebrate. A successful parade takes planning and preparation, and should include a clear evaluation of liability exposures.
As you evaluate your parades, please keep in mind the following:
- All parade participants should sign a waiver. Here’s a sample waiver that you can utilize.
- Only licensed drivers should operate a motor vehicle in a parade.
- Never throw candy from moving vehicles. Designated individuals should walk along the parade route and hand out candy directly to spectators.
- Spectators should never be encouraged to come into the parade route.
Each year when you complete your renewal applications, you are asked for a list of special events that you sponsor, organize or direct. Make sure you provide underwriting with a list of all special events, including parades, along with a short description of the festivities.
Your liability policy with Public Entity Partners provides coverage for your entity, as well as your elected officials, employees and official volunteers. Third parties are not covered under your liability policy. This means that groups participating in the parade are responsible for their own negligence.
Also keep in mind that every liability policy has exclusions. Some typical exclusions include car stunting, carnival rides or amusement devices. Always carefully review every parade entry to determine if your entity has protection under your liability policy. If you do want to include something in the parade that is excluded from your liability policy, your entity should consider a special event policy.
Forming a team that includes a representative from each of your entity’s departments is optimal for evaluating potential special event exposures. A successful parade can build community ties, create lasting memories and showcase what your community has to offer. A little risk management can help ensure that everyone has a fun and safe experience.
Do you have questions about risk management practices that you can put in place for your special events and parades? Our casualty loss control consultants can help!
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The Local Government Liability Balancing Act
Municipalities within the state of Tennessee provide vital services to their citizens. City employees are faced with tough decisions every day about the provision of services and the management of taxpayer dollars.
Liability exposures arise from these day-to-day operations. It is the balancing act between managing taxpayer dollars and protecting citizens’ rights (to recovery for injuries or damages caused by negligence of a governmental entity) that is embodied by the Tennessee Governmental Tort Liability Act (TGTLA).
Generally speaking, a tort is a civil wrong causing injury or damage to persons or property. Prior to the passage of TGTLA in 1973, local governments were totally immune from liability for torts done in their governmental capacity, but they could be liable for torts done in a proprietary capacity. The State Supreme Court indicated it would abolish this “sovereign immunity” for governmental acts if the legislature did not act. As a result, the TGTLA was passed.
The concept of sovereign immunity comes from the English Common Law that the “king can do no wrong” and the idea that you cannot bring into court the creator of the court. Prior to TGTLA, police, fire and general administration were the types of governmental functions that enjoyed total immunity from tort liability. However, proprietary functions, such as water and sewer services, electrical services and mass transit, had total liability for their actions.
The Tort Act was passed in an attempt to balance the needs of individuals seeking recovery for injury or damage negligently caused by a governmental entity with the necessity of offering financial protection for governmental entities so they can continue to provide public services for their citizens.
Tort Liabilities are the responsibilities for wrongful actions or inactions, as imposed by law. The Tort Act left the sovereign immunity intact, then created statutory exceptions to this immunity based on the governmental entity’s negligence.
Negligence is the failure to use the same degree of care that a prudent person would ordinarily use under the same or similar circumstances.
Negligence must be proven based on the following four elements:
- You had a duty to act.
- You breached that duty.
- Your breach of duty was the proximate cause of the injury.
- An actual injury or damage did occur, resulting in financial loss.
Governmental entities receive sovereign immunity for tort liabilities, except in a few cases. Sections 202-205 of TCA 29-20 removed immunity for the negligent operation of motor vehicles or other equipment; injury from the defective, unsafe or dangerous condition of any street, alley, sidewalk or highway; injury from dangerous structures; and injury caused by negligent acts or omissions of employees. Unless a tort falls within these categories, there is no financial responsibility for the city or governmental entity. In addition, the governmental entity must have actual or constructive notice for liability to attach itself.
Actual notice is defined as notice expressly and actually given. Constructive notice is information or knowledge of a fact. Simply put — you knew or you should have known.
There are eight exceptions to the removal of immunity for negligent acts or omissions of employees.
Immunity is maintained if the injury:
- Arises from the exercise of a discretionary function.
- Arises out of false imprisonment pursuant to a mittimus from a court, false arrest, malicious prosecution, intentional trespass, abuse of process, libel, slander, deceit, interference with contract rights, infliction of mental anguish, invasion of privacy or civil rights.
- Arises out of the issuance, denial, suspension or revocation of, or by the failure or refusal to, issue, deny, suspend or revoke any license, permit, certificate or other authorization.
- Arises out of failure to make an inspection, or the making of an inadequate or negligent inspection.
- Arises out of the institution or prosecution of any judicial or administrative proceedings.
- Arises out of misrepresentation by an employee.
- Arises out of, or results from, riots, unlawful assemblies, public demonstrations, mob violence and civil disturbances.
- Arises out of, or in connection with, the assessment, levy or collection of taxes.
A 1987 amendment to the TGTLA provided that a municipal employee acting within the scope of his/her employment has the same immunity from liability as the governmental entity, and that if the employee is found liable, the employee’s liability is limited to the same amounts established for the government itself.
Perhaps the greatest financial protection for both local governments and taxpayers is the monetary limits of liability set by TCA Section 29-20-403(b)(2)A. These limits apply to any claim occurring within the state of Tennessee and other claims to which Tennessee law is applicable.
As of July 1, 2007, these limits are as follows:
- $300,000 — Bodily Injury or Death of any one person, in any one accident, occurrence or act.
- $700,000 — Bodily Injury or Death of all persons, in any one accident, occurrence or act.
- $100,000 — Property Damage, for injury to or destruction of property of others, in any one accident, occurrence or act.
Non-State and Non-Tort Liabilities
Not all the exposures of governmental entities fall under the protection of the TGTLA. Claims arising outside the state of Tennessee are not subject to the Tort Act. This is due to the fact that Tennessee state law does not have jurisdiction across state lines. The key point to remember is claims that arise outside the state of Tennessee and federal actions have NO monetary tort limits. This means your exposure for these out-of-state and/or federal cases is much larger than claims that fall under TGTLA. In addition, many other states have their own version of the Tort Act, with different monetary limits.
Why Does This Matter to You?
The Governmental Tort Liability Act governs the majority of civil suits that affect you. Local governments work every day to serve their citizens and constituents with limited resources. Having a basic understanding of what makes your entity negligent, and what your entity can be sued for, helps policymakers, administrators and staff members as they carry out their duties.
Do you have questions about why the Governmental Tort Liability Act was created or how it impacts you? Our member services team can provide more information or discuss it with you.
This information is a summary of the Governmental Tort Liability Act and is not to be construed
as the actual wording of the law nor an interpretation of the law itself.
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Sewer Backup Liability Coverage
If you operate a wastewater collection system, your liability policy with Public Entity Partners includes liability coverage for your negligence. Public Entity Partners offers three types of sewer backup liability coverage; Standard GTLA (governmental tort liability act) Coverage, No-Fault Coverage Excluding Weather-Related Events, and No-Fault Coverage Including Weather-Related Events. Regardless of which coverage you choose, each type has important factors that need to be considered.
STANDARD GTLA COVERAGE
Standard GTLA coverage means an overflow or backup must be a direct result of the negligence of the city or utility district for a claim to be deemed compensable. Therefore, if a property owner has a sewer backup in their home or business, the city or utility district must be proven negligent before Public Entity Partners can cover the claim.
There may come a time, as elected officials or as city employees, when you feel obligated to pay for the cleaning and damage caused by a sewer backup or overflow. However, please be aware that if you pay for a backup when you are not negligent, a precedent is set that all sewer backup claims, regardless of negligence, will be paid by the city or utility district. What is done for one citizen should be done for all.
City or utility district employees should be instructed to never discuss fault or payment with the property owner. If a claim is denied under GTLA coverage, Public Entity Partners will cover the claim for your entity and defend you, but will not pay for third-party damages.
No-Fault Coverage differs significantly from the Standard GTLA coverage. No-Fault Coverage allows the payment of damages that result from overflows and backups from the sewer main, regardless of fault. This endorsement, however, does not generally provide for payment of damages from overflows or backups that occur in the service lateral line or on private property. These incidents are the responsibility of the property owner. This coverage has a $10,000 per-occurrence deductible and an additional premium is charged.
The No-Fault Coverage allows you to decide if you want to include or exclude overflows or backups as a result of weather events.
Example 1. No-Fault Coverage Excluding Weather and a significant weather event causes the loss:
If No-Fault Coverage Excluding Weather is selected, and a backup or overflow occurs during a significant weather event and infiltrates the sewer system, the coverage is going to revert to the Standard GLTA coverage (i.e., the loss must be a direct result of negligence by the city or utility district for coverage to apply).
During these events, it is crucial for employees to know the type of coverage the city or utility district has, and to refrain from discussing fault or payment with the property owner.
Example 2. No-Fault Coverage Excluding Weather and there is no significant weather event:
If No-Fault Coverage Excluding Weather is selected, and a non-weather-related backup or overflow occurs, coverage will be provided under the No-Fault Coverage and the $10,000 per-occurrence deductible will apply.
Example 3. No-Fault Coverage Including Weather and a significant weather event causes the loss:
No-Fault Coverage Including Weather means overflows or backups related to weather events will be covered under the No-Fault Coverage and the $10,000 per occurrence deductible will apply.
An entity’s decision makers need to be aware of the various components of No-Fault Coverage.
These components include:
- A $10,000 per-occurrence deductible applies.
- This coverage costs more in premium.
- There is a $100,000 limit to the coverage. If there are multiple claims, this money will have to be divided up. The city or utility district must decide who gets what. This limit will be exhausted very quickly if there are multiple claims under one occurrence.
- The No-Fault Coverage is not meant to take the place of a good sewer maintenance program.
- The No-Fault Coverage is excess coverage if the claimant’s homeowner’s or business policy already includes sewer backup coverage.
- Actual cash value is paid on covered damages.
- The liability limits set forth in T.C.A. §29-20-403 are not waived under this policy and/or endorsement.
Knowing how to respond to an overflow or backup is crucial and can save your city or utility district a lot of money.
Tips to consider when responding to an overflow or backup: