sr-121179-11cTO: Mayor and City Council
FROM: City Staff
Santa Monica,,." 'ifornia, November 29, 1979
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~~~ 1 .I 1979
SUBJECT: Loss Prevention and Control Policy
INTRODUCTION
This report transmits a Loss Prevention and Control Policy statement which, if
adopted, will affirm the commitment on the part of the City to take positive
action toward controlling losses resulting from employee injuries and public
liability claims.
rzorkr_on!m!n
The City Council and Staff have been aware for some time of the rising costs
of claims resulting from employee injuries and public liability claims. Greater
emphasis is needed in City operations for the control and prevention of these
losses. The City Counci 1 recent] y received a report (Information Item dated
November 13, 1979) of some of the activities currently underway which are designed
to reduce exposure to claims and injuries. Most of these activities require
commitment by employees at all levels of the organization.
Staff believes that it is appropriate and desirable to have the City Council
adopt a City-wide policy statement as a symbol of commitment by the governing
body to fully support the loss prevention and control efforts. This action will
insure that management, supervisors, line employees and the City Council are
unified in the concept of loss prevention and the goal of red!!r_ing claims and
losses.
LEGAL CONSIDERATI
Due to recent trends in court decisions regarding liabilities of municipalities,
it was requested that the City Attorney render an opinion of the action
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Mayor and City Coun(
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recommended by this report. Attached is a copy of this opinion.
ALTERNATIVES
Council may adopt the policy as presented in the attached resolution, adopt
an amended form of the policy or elect not to adopt the policy.
RECOMMENDATION
It is recommended that the City Council adopt the Loss Prevention and Control
Policy as presented in the attached resolution.
Prepared by
NM:dar
NEIL MILLER
Loss Prevention Manager
Attachments
CITY OF SANTA MONICA
LOSS PREVENTION AND CQNTROL POLICY
The safety of every person in the City of Santa Monica is of vital importance.
Therefore, this statement of policy is being issued to emphasize the need for
every supervisor and every employee to accept his or her full responsibility
for safety and loss prevention, and to conduct themselves in a manner which.
will guarantee safety to themselves, their fellow workers and members
of the public.
MANAGEI~dENT RESPONSIBILITY
The City Council and-the City Manager of the City of Santa Monica recognize
and firmly believe in the need for continued development of safe working
conditions and the safety of public property, facilities and rights-of--way;
and that it is management's responsibility to provide a safe environment
for employees and the public.
DEPARTMENTAL RESPONSIBILITY
The primary responsibility of providing an effective, safe operation, with:
a minunum of accidents, rests with the department.. Each department will
participate in a definite plan whereby the City's loss prevention. program
will reach and affect every employee in every job.
It is the responsibility of each department to enforce effectively the plan
to foster safe working conditions and habits and the safe operation of
facilities and activities involving the public. This plan shall include:
A) Decisions regarding City work and expenditures will not be
made without considering possible liability exposures presented
by these decisions.
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B) Regular inspections of facilities; grounds, equipment, public
rights-of-way and other property which will lead to hazard
identification and correction.
C) Establishing channels of communication- for prevention in-
formation. This shall be accomplished through the medium of
periodic meetings with foremen, other supervisors and employees
or other effective methods of communicating prevention information.
D) An investigation of all work and traffic accidents with a report
to the City Manager on the measures implemented to prevent
recurrence of similar incidents
E) The posting, distribution and discussion of the general safety
rules for employees.
F) Preparing and distributing safety rules for specialized operations
within each department as required.
G) Emphasizing safety and hazard identification during employee
evaluations.
SUPERVISORY RESPONSIBILITY
All supervisors and foremen will consider it an essential part of their
jobs to establish safe working conditions and identify potential hazards
to the public. They are responsible for:
A) Detecting. and correcting unsafe working conditions and practices;
B) Detecting and correcting hazardous conditions. that could be a
danger to the public;
Loss Prevention and ' arol Policy
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C) Training their employees in proper work procedure and City loss
prevention policies;
D) Ascertaining that each employee knows, understands, and follows
loss prevention rules pertaining to their jobs;
E) Encouraging loss prevention suggestions, discussing matters of
safety; and. answering suggestions and questions clearly and
promptly;
F) Completing proper accident reports giving special attention to
the steps taken to prevent similar accidents;
G) Keeping informed of new developments which. affect them and their
employees.
Employees who are properly selected, properly plaeed,properly trained, and
properly supervised will have less accidents. Sincere belief in this fact
is essential to good supervision.
IIVIPLOYEE RESPONSIBILITY
All employees are required, as a condition of employment, to observe all
loss prevention rules and practices and to follow .the instructions of their
supervisors and foremen. Employees are responsible for their own safety and
shall do everything possible to safeguard fellow employees. They shall be
alert to unsafe conditions that could present a danger to fellow employees
or the public and report them promptly to their supervisor or foreman.
Loss Prevention and C ;rol Policy
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LOSS PREVENTION MANAGER RESPONSIBILITY
The Loss ::Prevention Manager is responsihle for coordinating the loss
prevention efforts of the City. Of particular importance will be the
function of communicating information regarding accidents, claims,
lawsuits and settlements to the City Manager and to the operating departments.
The Loss Prevention Manager will make recommendations to the City Manager
whenever potential problems are identified or when specific loss prevention
actions should be considered.
The Loss Prevention Manager will monitor the departmental loss prevention
activities to insure the effective participation in loss prevention at all
levels of employment.
The presence of the Loss Prevention Manager does not relieve the responsi-
bility of loss prevention from Department Heads, Supervisors or all other
employees of the City.
LOSS PREVENTION ADVISORY TEAM RESPONSIBILITY
The City Loss Prevention Advisory Team shall be appointed by the City Manager.
The Loss Prevention Advisory Team shall serve as an advisory group to the
City Manager and shall consider major issues regarding loss prevention and.
make recommendations to the City Manager. The Loss Prevention Advisory Team
will be convened to consider proposed .loss prevention activities or policies
that are interdepartmental in nature. The team may also be called upon to
make recommendations to the Manager regarding expenditures for loss prevention
purposes.
Loss Prevention andi itrol Policy
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The adoption of this Loss .Prevention Policy establishes a commitment on
the part of City Management to control claims and losses and, where
possible, reduce the number of loss incidents. It is the goal of Management
to provide a safe working environment for its employees as well as maintaining
City facilities and public rights-of-way in such a way that safety hazards
are minimized.
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Council r2tg:' 12/11/79
CITY ATTORNEY OPINION
Opinion No. 79-219, November 27, 1979
SUBJECT: Legal and Practical Ramifications of Proposed
Policy Statement Regarding the City's Loss
Prevention and Control Program
REQUESTED BY: Neil Miller, Loss Prevention Manager
OPINION BY: Richard L. Knickerbocker, City Attorney
Shari K. Silver, Assistant City Attorney
QUESTION PRESENTED
1. What are the legal and practical ramifications if
the City adopts the Loss Frevention and. Control Policy?
CONCLUSION
1. Although the adoption and enforcement of the Policy
Statement by the City will provide management with the tool to
achieve accountability by all employees, it may also create a
"standard of care" for use by plaintiffs in negligence actions
where violations of the City's regulations or guidelines will raise
a presumption of negligence per se, in accordance with Evidence
Code Section 669.
AAT~T.VCTC
On May 16, 1979, the California Supreme Court in a four to
three ruling rendered a decision which may substantially increase
both the City's and its employees' liability in negligence actions.
The case of Peterson v. City of Long Beach, 24 Ca1.3d 238, 155 Cal.
Rptr. 360, 594 P.2d 447 (1979) held that a city's inter-department
regulations may be used as a standard of care in a negligence action.
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Thus, if a city employee violates said inter-departmental rule or
regulation, plaintiffs can allege negligence per se. Evidence Code
Section 669, discussed subsequently, provides that failure of a
person to exercise due care is presumed if he violates a statute,
ordinance or regulation of a public entity. Defendants must then
rebut said presumption by showing that the "person violating the
statute, ordinance, or regulation did what might reasonably be ex-
pected of a person of ordinary prudence, acting under similar circum-
stances, who desire to comply with the law "
In Peterson v. City of Long Beach, supra, a Long Beach
police officer was responding with his gun drawn to a radio call
which erroneously reported a burglary in process. He observed
Peterson running from the apartment and shot and killed him without
any report of seeing weapons, violence or threat thereof at the
apartment. The decedent's parents brought a wrongful death action
and the trial court found that though the officer failed to comply
with Police Department Manual guidelines for the discharge of the
firearms, nevertheless, this did not constitute negligence per se.
The Supreme Court reversed, stating that Evidence Code
Section 669 (a) provides that there will be a presumption of negligence
when an individual violates a regulation of a public entity which is
defined by Section 200 of the Evidence Code to include public agencies.
The California Law Revision Commission commented that the broad
definition of public entity includes every form of public authority.
Regulations are further defined by Government Code Section 811.6
to include standards adopted by an employee of a public agency pur-
suant to authority vested by charter or ordinance in such employee.
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Evidence Code Section 669 states as follows:
'°(a) The failure of a person to exercise due
care is presumed if:
(1) He violated a statute, ordinance, or reg-
ulation of a public entity;
(2) The violation proximately caused death or
injury to person or property;
(3) The death or injury resulted from an occur-
rence of the nature which the statute, ordinance,
or regulation was designed to prevent; and
(4) The person suffering the death or the injury
to his person or property was one of the class of
persons for whose protection the statute, ordinance,
or regulation was adopted.
(b) This presumption may be rebutted by proof that:
(1) The person violating the statute, ordinance, or
regulation did what might reasonably be expected of
a person of ordinary prudence, acting under similar
circumstances, who desired to comply with the law ."
Even though the trial court found that Section 4242 of
the City of Long Beach Police Department Manual prescribed certain
guidelines for the discharge of firearms by a City of Long Beach
police officer, the Supreme Court rejected the argument that said
manual did not constitute a minimal standard of care for the use of
firearms by said police officers. The trial court further held that
the failure of the officer to comply with Section 4242 of the Police
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Department Manual did not constitute a negligent or wrongful act
so long as the conduct was within the permissible limit of the
California Penal Code (and the Court found that it was within such
limit). Thus, the Supreme Court by its ruling created a more
stringent standard of care to be applied in the case in that the
Police Department Manual Section 4242 was more stringent than the
California Penal Code.
The Supreme Court refers to Section 200 of the Evidence
Code which states that a public entity can be "a nation, state, county,
city and county, city, district, public authority, public agency, or
any other political subdivision or public corporation, whether
foreign or domestic." when the above definitional words were pro-
posed, the California I~aw Revision Commission commented:
"The broad definition of 'public entity'
includes every form of public authority "
Not only does the Supreme Court define a City as a public entity
but it further expands the definition of "regulation" to include
rules and regulations of departments within the City. The Supreme
Court states at page 244:
"A city is a public entity. But so are the
office of its city manager and the department
that its police chief directs. Each tradition-
ally has been regarded as an 'agency' of the
city, obviously 'public'. We find it hard to
believe that the Legislature would not regard
city managers and police chiefs (whose power
to promulage rules is conceded" as heads of a
'form of public authority.' Since, therefore,
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when they promulgated the manual the city
manager and the police chief were acting
as heads of a public entity, as defined by
the Legislature, and since section 4242 0£
the manual clearly is a 'regulation', we hold
that the trial court should not have concluded
that section 4242 'does not constitute a
minimal standard of care for the use of fire-
arms by said police officers'."
The Supreme Court rejected the trial court's suggestion
that Section 4242 contains mere guidelines. It states at Footnote
4: "Its words are commands"
The Supreme Court further discusses Section 669 when
it discards defendant's and the trial court's argument that Section
669,cod£ying the common law presumption of negligence, only applies
to statutes and ordinances. It rejected the argument that statewide
or nationwide regulations on matters such as industrial safety and
aeronautics are different from local regulations, at least when no
city council, school board, or similarly "sovereign" entity has
promulgated the regulations. The Supreme Court states at page 245:
"The argument has no merit. In California
the local laws that prescribe safety, health
or other standards sometimes are promulgated
as ordinances, sometimes as regulations. When
the regulations have been duly prescribed and
contain words that clearly are obligatory, to
suggest that the Legislature in section 669
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intended to distinguish between ordinance-
form and regulation-form standards discloses
a lack of understanding as to how modern
governments work."
The Court discusses Government Code Section 811.6 which
defines "regulation" as follows:
"A rule, regulation, order or standard, having
the force of law, adopted by an employee or
agency of a public entity pursuant to
authority vested by constitution, statute,
charter or ordinance in such employee or
agency to implement, interpret, or make
specific the law enforced or administered by
the employee or agency."
To see how devastating the Supreme Court's decision
was, the Court, in discussing Evidence Code Section 669(b)(1) which
provides:
"(b) This subdivision may be rebutted by proof
that:
(1) The person violating the statute,
ordinance, or regulation did what might
reasonably be expected of a person of
ordinary prudence, acting under similar
circumstances, who desire to comply with
the law .'°
held that the "law" includes that very inter-department regu-
lation which was violated. Thus, the Supreme Court basically in
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effect wiped away defendant's rebuttal evidence when it stated that:
"Law includes not only legislative but also
quasi-legislative measures. Section 4242 of
the police manual is, of course, a quasi-
legislative measure." (At .page 242).
The legal and practical ramifications of this decision
on the proposed loss prevention policy statement axe best explained
by Justice F.ichardson, who wrote the dissenting opinion and was joined
by two other justices. The dissenting opinion thus held:
(1) A police department manual should not be
considered a public agency regulation under
Evidence Code Section 669.
(2) "Section 669 requires a showing that the
ordinance or regulation in question was
'designed to protect persons in plaintiff's
class from the type of injury which in fact
occurred.' In other words, the regulation
or other enactment must prescribe a standard
of care by which to measure one's legal duty
to others.
Iflwould be highly improper and unfair
to base a presumption o£ negligence solely
upon the violation of an enactment which
was not intended to create a duty of care,"'
(Page 248).
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(3) "A presumption of negligence properly can-
not be based upon violation of internal,
departmental policies which were not in-
tended as minimal standards of care.
The manual was intended to encourage re-
straint over and above the limits imposed
by law, in order to protect the officer and
his employer from civil liability. It is
highly ironic, I suggest, that guidelines
which were intended to shield against civil
suits may now furnish the sole basis for im-
posing such liability." (Emphasis added;.
page 249).
Thus, the City Council is faced with a judgmental
decision. In order to obtain accountability by department heads and
City employees, guidelines must be instituted to form a basis to
allege and prove non-compliance. Eowever, these very guidelines
may be used against the City and individual employees. For example,
at page 2 of the Loss Prevention Control Policy, it states:
"All supervisors and foreman will consider it
an essential part of their jobs to establish
safe working conditions and identify potential
hazards to the public. They are responsible for:
(a) Detecting and correcting unsafe working con-
ditions and practices;
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(b) Detecting and correcting hazardous
conditions that could be a danger to the
public."
Thus, it is likely that a plaintiff will now seek to
sue various supervisors and department heads for violation of
the above rules.
The legal and practical ramifications of the Supreme
Court decision in Peterson, supra, are great. The City Council
by this opinion is informed of the potential hazards in adopt-
ing such a policy. However, without the adoption of a policy,
it will be difficult for the City management to enforce the
goals involved in risk management and loss prevention.
Respectfully submitted,
1 ~ ~~
~ r
SHA.RI K. SILVER
Assistant City Attorney
~"' '
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RICHARD L. KNICKERBOCKER
City Attorney
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