Nonprofits Insurance Alliance

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From the Claims Files: Surveillance Cameras

When it comes to claims, the use of surveillance cameras can make or break a case depending upon how, when and where they’re used. In cases where cameras are in use and are properly placed, video footage has the potential to save your nonprofit from the headache and time spent involved in a “he said, she said” claim scenario. On the other hand, nonprofits that have poorly placed or maintained cameras, or no cameras at all, may have a difficult road ahead if a claim is filed. Remember, visual evidence is definitive, while witness and claimant testimony is not.

Learn about the benefits and pitfalls of camera surveillance below, as illustrated by several claims experienced by members of the Nonprofits Insurance Alliance Group.

Claim 1: Surveillance Tape Saves the Day

A female passenger being transported in a member’s passenger van alleged that she fell onto the floor of the vehicle because of the driver’s abrupt braking. The passenger, who was sitting in a motorized scooter at the time of the incident, also claimed that she was not properly strapped in, causing her to suffer injuries to her neck, back and leg.

One month later, when the claim was received by the nonprofit, the video surveillance footage from the vehicle’s on-board camera was submitted and it depicted an entirely different story. What did the footage show? The claimant seated in her motorized scooter, presumably removing her own seatbelt, and lifting herself out of the chair and throwing herself onto the floor. She then yells until help arrives. What else does the footage show? The driver of the member’s vehicle did not brake suddenly.

After viewing this footage, the claimant’s attorney dropped the claim. Thankfully for the nonprofit, footage of this incident was available, giving them the tools necessary to refute the claim.

Claim 2: Ill Placed Cameras Offer No Help

A nonprofit member operates a thrift store. This store had cameras covering the majority of the sales floor, but with a few exceptions; the area where large items were placed, such as furniture, was not covered by the surveillance cameras on site. A female claimant alleged that a large piece of furniture fell onto her hand, requiring surgery.

When the claim was filed, the insured produced store footage which depicted the claimant walking around the store before and after the alleged incident, but not during because that area wasn’t visible on the surveillance cameras. Eyewitness testimony suggests that the claimant was merely grazed by toppling furniture, but due to the lack of definitive visual evidence, there was no way to disprove the claim.

Claim 3: Lack of Camera Leads to Detriment

A member that provides transportation to disabled individuals received accusations of repeated sexual assault to a developmentally disabled passenger by a driver. The vehicle did not have an on-board camera installed at the time, although one was slated to be installed soon.

Unfortunately, the prior existence of a camera in the member’s vehicle may have prevented the sexual assaults, or would’ve prevented them from happening as frequently as they did. Surveillance footage would’ve also provided firm evidence in support of the claim, rather than leaving it to witness testimony to make the case. Either way, video footage is definitive and witness testimony is not. In this case, video footage might have been damaging, but it also might have prevented the abuse. On balance, we believe having video footage is preferred.

Lessons Learned

There are several lessons that can be learned from these claims examples, which can help your nonprofit if an accident or property claim arises. If your nonprofit has facilities or vehicles that do not have surveillance cameras installed, consider doing so. If your nonprofit is already using cameras, be sure that all areas are visible, and at all times. In the event that a claim occurs, do the following:

  1. Preserve any footage captured of the alleged incident immediately – especially if your nonprofit’s cameras record on a loop
  2. Take additional photos of the incident site when possible, using a camera or smartphone – if a vehicle is involved, document the plate number
  3. Train all staff on how to respond when an incident occurs, placing emphasis on the importance of visual documentation

While surveillance footage may help your nonprofit in defending itself in a claim, video camera recording and still photographs may present legal risks associated with invasion of privacy if the individual being filmed has a reasonable expectation of privacy in the location that is being visually recorded. An expectation of privacy clearly exists in places like restrooms, changing rooms and bedrooms, but can exist in other locations. Additionally, state and federal laws regulate the audio recording of individuals.  While under federal law only one party to a conversation needs to consent to audio recording, some states, including California, require anyone being audio recorded consent to the recording.  For that reason, many employers who choose to video record do not record audio. Please review your state laws to ensure that any video or audio recording is done in compliance with the law.

It’s clear that the use of surveillance cameras can hurt or help your nonprofit, depending on how they’re used. But, from our experience of handling thousands of claims against nonprofits, the proof is in the pudding. Having cameras is better than not having cameras!

 

Preventing Slips, Trips and Falls

Slips, trips and falls are one of the most common causes of incidents in and around public and private buildings of all sizes. This can be a very costly problem for any nonprofit.

According to the National Safety Council, approximately 900 slip, trip and fall incidents happen every day in workplaces all across the U.S.  From 2014 to 2016, Nonprofits Insurance Alliance Group members have had the unfortunate experience of approximately 888 slip, trip or fall related claims, costing nearly $7 million. These incidents were caused by a broad variety of hazards, including slipping on hangers left on the floor of a changing room at a thrift store, a wet entryway floor, tripping over curbs in parking lots, slipping on icy sidewalks and falling on stairs that did not have handrails or a nonslip surface.

Effective slip and fall incident prevention methods go well beyond just keeping floors clean or placing a “Wet Floor” sign after mopping. It’s important to establish a program that focuses on prevention, as well as procedures on what to do if someone does get injured. Documenting the incident, collecting witness statements and any possible video surveillance can make a huge difference in defending you from any fraudulent claims as well.

It is important to understand where on your premises the greatest potential for danger lies. To reduce slip, trip and fall incidents in or around your facilities, as well as protect your organization in the event of a claim:

  • Conduct a daily facility safety survey to look for common culprits such as wet or greasy floors, loose mats, torn carpeting, bad lighting, clutter, cables or wires and uneven surfaces.
  • Immediately attend to any problems by putting up warning signs and/or closing an area off and taking steps to quickly eliminate the hazard.
  • Maintain all floors and walkways on a consistent basis, using the recommended cleaning products and methods. Fix all uneven surfaces if possible by recoating or leveling the floor. You should mark or illuminate areas that can’t easily be leveled.
  • Train your employees and volunteers in slip and fall safety, and establish guidelines on how they should report problems and respond to customer injuries or hazardous situations. Stress these safety reminders:
    • If you drop it, pick it up.
    • If you spill it, wipe it up.
    • Go where you are looking, and look where you are going.
  • Make sure you have secure handrails for all stairs and balconies.
  • Take care of your outdoor areas, including sidewalks and parking lots. Potholes, snow and ice all create potential problems. If necessary, subcontract snow and ice removal to make sure it’s handled promptly and meets local legal standards.
  • Additional or dry replacement entrance mats may be needed during wet weather. Document all of your efforts by keeping records of your daily safety inspections and any maintenance work to improve walking and working surfaces.

Form a written policy and train managers on how to consistently respond and document any slip and fall claims. This might include taking witness statements, first aid, contacting emergency responders and archiving video evidence from security camera systems of the event. You should have a written incident report form to document any such events. (Sample form provided in link below). Slips, trips and falls have the potential to be a major cause of injury for your employees, volunteers and visitors. Be sure you are doing all that you can to recognize and reduce the risk.

 

Post-Accident Drug Testing – It’s No Longer Automatic

For years, many employers have automatically required drug testing of an employee involved in any work-related accident.  The fact that an accident occurred was justification for the testing, without regard to whether any suspected drug or alcohol use contributed to the accident, and regardless of the severity of the injury or damage.

Some states have placed limitations on this practice. For example, in the 2013 California decision resulting from Freeman v Kohl’s, it was found that such a policy of automatic testing was overbroad and invaded privacy rights of  employees.  It held that an  employer’s post-accident policy that requires drug testing in the event of any reported work-related injury, regardless of the extent of any damage, the extent of the injury, and whether the claimant bears any responsibility for incurring the injury, is invalid.

There is now a new and national directive that affects virtually all employers who maintain and implement such a policy.  In August of 2016, the Federal Occupational Health and Safety Administration (OSHA) issued its final rule on electronic reporting of workplace injuries.  Among other things, this rule found that the use of this broad policy after any workplace injury may deter reporting of such injuries and concludes that drug testing policies should limit post-incident testing to situations in which employee drug use is likely to have contributed to the incident, and for which the drug test can accurately identify impairment caused by drug use.

According to OSHA, examples of unreasonable use of the test would include a bee sting, a repetitive strain injury, or an injury caused by a lack of machine guarding or a machine or tool malfunction.

As a result of this new order, there is an increased, but significant risk in continuing the practice of conducting an automatic drug test after any work related accident.  There are significant fines that will be imposed for use of these policies that deter reporting of workplace injuries — and there is also the possibility of facing claims of invasion of privacy from affected employees.

In light of this new rule, drug testing policies must be reviewed and modified to ensure that post-accident drug testing is performed in a fashion consistent with OSHA’s mandates.

 

Distracted Driving

Distracted driving is any activity that diverts attention from driving, including: talking or texting on the phone; eating and drinking; talking to people in the vehicle; fiddling with the music, entertainment or navigation system. It is anything that takes attention away from the task of safe driving.

Any non-driving activity is a potential distraction and increases the risk of being involved in a crash. The National Highway Transportation Safety Administration (NHTSA) estimates that 25 percent of all crashes involve some form of driver distraction, and thousands of people are killed each year in those crashes. Sadly, every single death is 100 percent preventable.

The best way to be ready for the unexpected is to minimize driver distractions. While no state has a law prohibiting all cell phone use while driving, employers are putting policies into place banning the use of both handheld and hands-free devices. Your organization should have a written distraction-free driving policy. It can be a stand-alone policy or an element of a vehicle use policy. Your distraction-free driving policy should apply to all individuals driving on behalf of your organization, whether an employee/volunteer is driving your agency-owned autos or their personal vehicles. (Sample vehicle use policies are available on our secure website.)

Why should you consider implementing a best practice, distraction-free policy? Juries all over the country are reacting very strongly to distracted driving cell phone crashes. They are awarding very large damages amounts. A jury in Texas, for example, found a beverage company liable after one if its drivers crashed while talking hands-free. The hands-free headset complied with company policy. One injury – verdict $21 million.

Distracted Driving Background

The National Safety Council has reviewed more than 30 studies that show that using hands-free devices doesn’t make driving any safer because the brain remains distracted by the conversation. A study by the Virginia Tech Transportation Institute in 2013 found that impairments associated with drunk and/or drugged driving and texting while driving are similar. Both cause distraction than can result in behaviors such as following too closely, driving slower than the speed limit, weaving into oncoming traffic, lane drift, and not being able to brake on time.

Think that distracted driving isn’t as bad as impaired driving? In 2013, Car and Driver Magazine performed an experiment to document just how dangerous texting and driving can be in comparison to impaired driving. They tested how long it would take to hit the brakes when sober, when legally impaired at a BAC level of .08, when reading an email, and when sending a text. Results: the sober drivers took an average of .54 seconds to brake; the legally impaired drivers took an additional four feet; 36 additional feet for those reading an email; and 70 feet for those sending a text.

Did you know that at 60 mph a vehicle travels 88 feet in one second? At that speed, if a driver takes their eyes off the road for two seconds they will have traveled blindly (yes, like driving with their eyes closed) for 180 feet or more than half the distance of a football field. Stopping that vehicle will take more than four and a half seconds.

Driving safely on today’s roadways is a demanding task that requires constant attention. Employees and volunteers need to stay focused and keep their mind on the road. Just one second of a driver’s attention is all it takes to change a life forever.

 

Indemnification Agreements with Third Party Vendors or Nonprofit Program Funders

Many nonprofits contract with third party vendors to provide services essential to their operation as a business. These services run the gamut and typically include services such as janitorial, technological systems, building contractors, and transportation providers or something occasional like a bounce house provider for your fundraiser. A key to evaluating the risks of your nonprofit’s operation is to assess responsibility for liabilities that may arise in the provision of services by third parties. For example, who is responsible for physical injuries to a janitor? Or for replacing a window broken by the building contractor? What about for a serious vehicular accident involving your transportation provider and your clients, or an injury to a participant if the bounce house is defective?

The key component in your nonprofit’s risk management plan is to make sure that your nonprofit has appropriate and adequate insurance to cover all its operations. Additionally, in your agreements with vendors, it is essential to require that they are legally responsible for any claims or damages arising out of the work they perform. Vendors can be held legally responsible by way of an indemnification agreement in the contract for their services. The contract should also specify which type of insurance they must maintain and require that they provide satisfactory proof of insurance. For example, you would want to make sure that a transportation service has general liability, workers’ compensation and sufficient auto insurance coverage to address any potential losses.

An indemnity agreement is a contractual promise by which one person or entity accepts full legal responsibility for losses related to certain specified activities. So if there is a claim or lawsuit arising from an injury or loss as a result of the vendor’s activity, the vendor, typically through their insurance carrier, is responsible for any damages or liability, typically including attorney’s fees.  Indemnity agreements are an effective tool for transferring the risk associated with a particular activity and establishing clear responsibility in the event of a loss, and are strongly recommended to be in all of your contracts with third party vendors.

It’s also important to review all your nonprofit’s contracts with funders, typically governmental entities, for programs such as counseling, after-school care, education and outreach or job training. It is critical to evaluate the scope of any indemnification agreements in these program contracts whereby your nonprofit is accepting the risk of any losses in the operation of the program. These indemnification agreements are transferring what can be a substantial monetary liability to your nonprofit which should be evaluated before you sign the contract and discussed with your insurance broker to confirm that adequate insurance coverage is in place to address this additional risk. One of our nonprofit members is currently faced with a claim exceeding 2 million dollars because it agreed to an indemnification clause providing the “broadest possible coverage” to a county, even though the damages were primarily related to negligence by county workers. Nonprofits should review these indemnification agreements and negotiate the terms with their funders if they attempt to transfer a risk that is unacceptable or beyond the ability of your nonprofit to mitigate or control.

 

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