Issue 137 – July 2023
This summer, the cities of Fountain Valley, Hermosa Beach, and Laguna Hills became the newest members of the California JPIA. Our membership now stands at 126 municipal agencies, including 101 cities, 18 joint powers authorities, and seven special districts that partner with the Authority to address their risks and implement best practices.
The new members acknowledge that the California JPIA goes beyond providing insurance coverage. They have embraced the Authority’s comprehensive risk management model, which is focused on engagement, collaboration, and implementing best practices for loss prevention and risk reduction.
“We are excited to partner with our new members and support their operations,” said California JPIA Chief Executive Officer Alex Smith. “We look forward to working with City staff and elected officials by providing access to training and many other Authority services and resources. When new members are successful in minimizing the cost of their claims, it has a positive financial impact on the entire pool.”
Each new member participated in an orientation led by Authority staff, which included a curriculum on governance, finance, risk management, training, and coverage programs, including liability, workers’ compensation, and property. You may learn more about each of our new members by reading the additional articles in this issue of the newsletter.
The California JPIA is pleased to announce that Jacob Houghton will be the closing keynote speaker at the 28th Annual Risk Management Educational Forum. As a senior consultant for 34th Street Consulting, Jacob has a decade of experience in public service and educational leadership.
With years of school administration experience, Jacob knows how to navigate life as a public servant. He understands the need to connect with all stakeholders and provide the highest level of service to the community and colleagues. Jacob’s professional training makes him adept at identifying patterns of conflict and creating actionable strategies that teams can understand and buy into. His areas of expertise are public service leadership, conflict resolution, and employee coaching.
Jacob received a Bachelor of Science degree in psychology and a Bachelor of Arts degree in Spanish from Brigham Young University; a Post Baccalaureate degree in education from the University of Northern Colorado; a Master of Education degree in educational leadership from Lamar University; and is a certified 34th Street Wedge Remover.
This year’s Forum, titled It’s Like, Totally Risk Management, will be held at the Omni La Costa Resort in Carlsbad from August 30 to September 1, 2023. For questions about the Forum, please send us an email.Print Article
At the Annual Meeting of the Board of Directors this July, five members received Risk Management Awards for demonstrating superior risk management practices.
“Through the California JPIA’s Risk Management Awards, we celebrate and acknowledge members who demonstrate excellence in loss control program implementation,” said Chief Executive Officer Alex Smith.
The Authority’s Risk Management Awards recognize members who have demonstrated the best overall performance in the Primary Liability Program and the Primary Workers’ Compensation Program.
The winners were:
Primary Liability Program
- Town of Mammoth Lakes (Municipal Agencies with Police Exposure)
- City of San Marcos (Municipal Agencies without Police Exposure)
- Midpeninsula Regional Open Space District (Non-Municipal Agencies)
Primary Workers’ Compensation Program
- City of Poway (Municipal Agencies with Public Safety Exposure)
- City of Mission Viejo (Municipal Agencies without Public Safety Exposure)
- Midpeninsula Regional Open Space District (Non-Municipal Agencies)
A committee of California JPIA staff evaluated member agencies’ management practices. The committee determined the winners by considering participation in risk management programs, attendance at training opportunities, outreach, and engagement.
“Proactively utilizing Authority programs and services is a great way for members to lower risk exposures and improve their operations,” said Smith. “We are proud to recognize deserving members for their due diligence and commitment to best practices in risk management.”
Congratulations to the 2023 Risk Management Award Winners!Print Article
By Daniel P. Barer, Partner, Pollak, Vida & Barer
Government Code section 830.6 regarding Design Immunity has been part of the Government Claims Act ever since the Act was passed in 1963. For sixty years, it has been a powerful shield for agencies to use against personal injury lawsuits that allege public property is dangerous because it could have been designed to be safer. Unfortunately, a recent California Supreme Court decision involving a California JPIA member agency has weakened that shield. Tansavatdi v. Member, decided in April 2023, reaffirms (and expands upon) a 1972 California Supreme Court decision that held the immunity does not apply to an agency’s failure to warn of concealed traps of which the agency had notice. Agencies should be aware of this potential exposure and take measures to minimize risks of injury and liability.
Under Government Code section 830.6, an agency is immune from liability for an injury caused by a plan or design of public property if three elements are established:
- The plan or design caused the injury;
- the plan or design was approved before construction by either the agency’s board or an employee with authority to approve designs (or was built in conformity with standards so approved); and
- there is some evidence that the approval was reasonable.
An agency can lose this design immunity if a change in physical conditions makes the design or plan dangerous and the agency has notice of the danger created. But even under these circumstances, the design immunity remains in place for a reasonable period of time sufficient to allow the agency to obtain funds and carry out the corrective work necessary to conform the property to a suitable design or plan. Further, if the agency cannot fix the property due to insufficient funds or because it’s impossible as a practical matter to do so, the immunity remains as long as the agency makes a reasonable attempt to provide adequate warnings of the condition.
A 1972 California Supreme Court case, Cameron v. State of California, appeared to establish another exception to design immunity. It held that even if all design immunity elements are established; the agency can be held liable for failing to warn of a “concealed trap” created by the design—some dangerous property condition that would not be obvious to persons using the property with due care. This exception does not appear in the language of Government Code section 830.6. It appears in the Government Claims Act as an exception to a different statutory immunity: Government Code section 830.8, which immunizes agencies for failure to place warning signs on roadways.
Cameron’s holding was so out-of-left-field that two published decisions from lower appellate courts declined to follow it. Compton v. City of Santee (1993) 12 Cal.App.4th 591 ignored Cameron and held that design immunity applies to liability for failure to warn of concealed traps. Weinstein v. Department of Transportation (2006) 139 Cal.App.4th 52 acknowledged Cameron but held that it did not apply where the “concealed trap” was part of the approved design.
The lower court decision in Tansavatdi, however, followed Cameron. Tansavatdi arose out of a bicycle versus truck accident. The decedent rode straight through a right-turn lane next to a trailer-truck turning right from the number-two lane, hit the trailer, and went under the wheels. The decedent’s mother sued the member agency and alleged that the boulevard was dangerous because it lacked a bicycle lane in the area of the accident. The mother further asserted that the agency failed to warn of the absence of the bike lane, the traffic speed, traffic volume, and the grade of the slope down which the decedent rode. The agency asserted design immunity and that there was no failure to warn. The trial court granted the agency summary judgment based on design immunity and did not expressly address the failure-to-warn claim. In a published decision, the appellate court affirmed the trial court’s finding of design immunity. It ruled, however, that design immunity did not apply to the failure-to-warn claim. It ordered that issue be sent back to the trial court to decide. Because the appellate court’s decision on failure to warn conflicted with the holdings in Compton and Weinstein, the agency sought and obtained a review of that part of the decision from the California Supreme Court.
In its April 27, 2023, decision, the California Supreme Court agreed with the lower appellate court’s conclusion. It held that under Cameron, design immunity for a dangerous condition does not necessarily shield the public entity from liability for failure to warn of the same dangerous condition. Further, the Supreme Court expanded on Cameron.
The Supreme Court held that design immunity is limited to agency liability for creating a dangerous condition of public property (Government Code section 835(a)). It ruled that design immunity does not necessarily apply to agency liability for being on notice (actual or constructive) of a dangerous traffic condition and failing to warn or protect against that danger adequately (Government Code section 835(b)). Besides the loss of design immunity due to changed circumstances, the Supreme Court held that a public entity could be held liable for failure to warn of a dangerous condition of which it had notice, even if the creation of the condition is covered by design immunity.
The court put some restrictions on that theory of liability.
- The plaintiff must prove the public entity had actual or constructive notice that its design resulted in a dangerous condition.
- Failure to warn claims may be subject to a separate, more limited form of statutory immunity: the warning-sign immunity outlined in Government Code section 830.8. As noted above, section 830.8 has a “concealed trap” exception. A plaintiff must overcome signage immunity by establishing that the accident-causing condition was a concealed trap to prove liability under this theory.
- The plaintiff must prove that the absence of a warning sign was a substantial factor in causing the accident. The court disapproved the holdings in Compton and Weinstein (discussed above) to the extent they held that design immunity barred liability for failure to warn of a concealed trap.
There are several questions that Tansavatdi’s holding leaves open. The Court declined to address how its holding would apply to public improvements other than roadways—such as buildings—to which the signage immunity would not apply. It declined to rule whether there was a dangerous condition, a concealed trap, or inadequate warnings present in the incident giving rise to the case. And the court declined to say how its holding would apply if the design or plan sets forth warning signs for the design location—or reflects a decision not to install particular warning signs.
Nevertheless, the Tansavatdi holding puts agencies on notice that they may face liability for designs or plans that prove dangerous in operation, even if the elements of design immunity are met, and there are no changed conditions. To prevent such liability, we recommend that agencies inspect their property to find hazards caused by designs that prove dangerous in operation—and either remedy or warn of them. Agencies should especially look for conditions not reasonably evident to those using the property with due care. Examples of “concealed traps” include ice that appears periodically and that is not visible to oncoming motorists; intersections with impaired visibility; curves that are banked in an unexpected direction; unexpected narrowing of paved portions of roadways; and any other abrupt change in a traveled area that would not be apparent to those approaching it. Agencies designing new projects may also wish to document in their plans any decisions on installing particular warning signs and their reasons for deciding whether warnings are or are not appropriate.Print Article
The California JPIA welcomed members to the Authority campus on Wednesday, July 19th, for the 2023 Annual Meeting of the Board of Directors. A quorum of delegates representing 80 member agencies attended the meeting. The Board of Directors, the governing body of the California JPIA, consists of one elected official appointed by each of the 126 member agencies, including 101 cities, 18 joint powers authorities, and seven special districts.
“The annual Board of Directors meeting offers an opportunity for members to come together, build comradery, and learn about current events at the Authority, its financial performance, new programs and initiatives, and plans for the upcoming year,” said Chief Executive Officer Alex Smith. “Alongside the Executive Committee, the Board of Directors plays a key role in ensuring that the Authority remains a member-focused organization.”
Executive Committee President Margaret Finlay, representing the City of Duarte, welcomed delegates to the meeting, extending special greetings to representatives from the Authority’s new members: Fountain Valley, Hermosa Beach, and Laguna Hills.
“With its three new members, the Authority, for the first time, has over 100 municipalities as members,” said Finlay. “As we recognize new members, we also recognize our new CEO, Alex Smith. Alex is doing a fantastic job, and I am confident he will continue to propel the Authority–and its members–forward.”
Delegates reelected Finlay as president of the Executive Committee. Steve Croft, City of Lakewood; Marshall Goodman, City of La Palma; and Sonny Santa Ines, City of Bellflower, also were reelected to serve two-year terms as members of the Executive Committee.
Smith presented an operational overview and strategic plan, emphasizing coverage programs, member services, risk management resources, and the comprehensive training offerings provided to members. After Smith’s presentation, the meeting was adjourned to the next Board of Directors meeting, Wednesday, July 24, 2024.Print Article
Periodically, the Authority updates our resource library, including updates to existing and newly developed resources. Below are some recent updates.
The Naloxone Policy and Procedures resource includes a policy template and program implementation procedures. A link to a training video provided by the California Department of Public Health is also included. When considering the adoption of a naloxone policy, it is strongly recommended to evaluate the applicability of other policies, plans, and training. Those employees deemed authorized to carry and administer naloxone may also benefit from CPR/First Aid/AED training. The Authority’s CPR/First Aid/AED training includes training on administering naloxone. This resource was made available to members in July.
The Body Armor Policy and Procedures resource includes a policy template and procedures addressing the possession and use of body armor for designated classifications, such as code enforcement officers and other non-peace officer employees with similar duties. This resource was made available to members in May.
The Pepper Spray Policy and Procedures resource was reviewed for potential updates and made available to members in May.
The Heat Illness Prevention Plan resource formatting was revised to align with Cal/OSHA’s template with a checkbox feature and was made available to members in June.
These resources can be accessed and downloaded in the library section of the Authority’s website. Resources available in Word format allow members to customize for agency-specific policies and procedures.
If you have any questions, please contact your regional risk manager.Print Article
By Jim Thyden, Insurance Programs Manager
The web portal is available to revise and reissue recurring Evidence of Coverage (EOC) documents. Members can obtain EOCs for the current coverage period beginning July 1, 2023, through June 30, 2024.
An EOC, sometimes called a Certificate of Insurance (COI) by other parties, provides proof of liability and workers’ compensation coverage. New this year, EOCs include evidence of sexual abuse and molestation coverage. Member agencies commonly issue EOCs as part of the agreement process to third parties, such as individuals, vendors, companies, school districts, etc.
EOCs can be revised immediately, and PDFs will be emailed to the requestor to distribute as necessary to those who require the EOCs.
The Authority encourages members to review all current EOCs listed on the webpage for the upcoming coverage period to identify those that should be reissued or are no longer needed.
If you have questions about EOC letters, please contact Insurance Programs Manager Jim Thyden.Print Article
Fountain Valley, previously a member of the California JPIA for 32 years, rejoins the Authority after a five-year hiatus. The city elected to participate in the California JPIA’s Excess Liability Program as of July 1, 2023.
Fountain Valley staff presented the opportunity to rejoin the Authority to its city council, citing cost savings but also a desire for access to training and support services.
“The California JPIA provides excellent customer service and valuable resources to assist its members from a liability standpoint. Their staff is personable, helpful, and knowledgeable in their areas of expertise,” said Fountain Valley City Manager Maggie Le. “We are excited that the Fountain Valley City Council supported our staff recommendation to rejoin the California JPIA.”
“The California JPIA’s customer service has always been great,” said Fountain Valley City Clerk Administrator Rick Miller, who administers the city’s risk management program. “The training program provided by the Authority is also highly regarded and welcomed by all of our employees.”
Fountain Valley, in northern Orange County, is bordered by the cities of Costa Mesa, Garden Grove, Huntington Beach, Santa Ana, and Westminster. It was incorporated in 1957, and its name refers to the area’s high-water table and artesian wells. It is home to a population of 55,496 residents.
“From our initial meetings with the City of Fountain Valley, it was clear that risk management is an important element of the city’s operations,” said California JPIA Chief Executive Officer Alex Smith. “We look forward to supporting the city and working with staff to take their risk management best practices to the next level.”
The city’s public safety resources include a police department and two fire stations.
Fountain Valley hosts more than 150 acres of neighborhood parks, recreational buildings, and athletic facilities. The city has twenty-one (21) parks, a community center, a 16,652-square-foot senior center, and a sports complex. Mile Square Regional Park is a 640-acre park that features two lakes, two 18-hole golf courses, playing fields, picnic shelters, and a 20-acre urban nature area that is in the city limit but is operated by County OC Parks. Annual special events managed and staffed by city employees and volunteers include Summerfest, movies and concerts in the park, a Lunar New Year Luncheon and cultural events, senior holiday luncheons, a Senior Expo, Classic Car and Truck Show, an Egg Hunt, a Crawfish and Lobster Festival, a Winter Dance, and a Tree Lighting Ceremony.
“I am enthusiastic to have the City of Fountain Valley join the California JPIA,” said California JPIA Senior Risk Manager Lucy Gonzalez, who supports the Authority’s members in Orange County. “During the application process, it was clear that the city’s management understands and adheres to proper risk management practices and values the safety of both residents and staff. I look forward to collaborating with Fountain Valley to further strengthen their risk management policies and protocols.”
Welcome back, City of Fountain Valley, to the California JPIA!
The City of Hermosa Beach, a community of almost 20,000 residents located in Los Angeles County, has elected to participate in the California JPIA’s Excess Liability and Workers’ Compensation Programs and the Property Insurance Program as of July 1, 2023.
Hermosa Beach offers a full range of municipal services, including public safety, community development (planning and zoning), recreation, parks, public works, parking and animal control, and general administration. The city employs its police department and contracts fire and emergency medical services with the Los Angeles County Fire Department.
“The California JPIA is excited to have the City of Hermosa Beach as a member. Through the application process, it was evident city management and staff understand the importance of risk management and the benefit they will derive from the Authority’s coverage and services,” said California JPIA Senior Risk Manager Toni Consolo. “We look forward to a long and collaborative partnership.”
The city has a total area of 1.43 square miles. It has one pier, two libraries and museums, one skate park, 20 parks and playgrounds, and two community centers. It offers senior programs, recreation classes and activities, and special events, including festivals and charitable activities.
“The leadership and staff of the City of Hermosa Beach have a well-informed approach to risk management. Their values align with the Authority’s risk management culture,” said California JPIA Chief Executive Officer Alex Smith. “I’m confident this partnership will benefit our members and the Hermosa Beach community, providing dependable and cost-effective coverage and valuable training resources.”
Welcome, City of Hermosa Beach, to the California JPIA!
The California JPIA is happy to announce the addition of the City of Laguna Hills to the Authority’s Primary Liability and Workers’ Compensation programs, effective July 1, 2023.
“The City of Laguna Hills is joining a well-established community of Authority members in Orange County,” said California JPIA Chief Executive Officer Alex Smith. “Being close to experienced peers within our organization offers Laguna Hills invaluable opportunities for peer-to-peer knowledge-sharing and collaborative regional problem-solving. This synergy will further enrich the Authority and our Orange County members.”
Incorporated on December 20, 1991, Laguna Hills boasts fourteen parks, a library, a community center, a sports complex, and a skate park. The city hosts several special events throughout the year, including a Daddy Daughter Dinner Dance, Easter Egg Hunt, 4th of July Celebration, Harvest Festival, Breakfast with Santa, and Christmas tree lighting ceremony.
Nestled in the heart of Orange County, Laguna Hills is surrounded by the cities of Lake Forest, Laguna Woods, Aliso Viejo, and Laguna Niguel. With a total area of 6.7 square miles, the city has a population of almost 31,000 residents.
Laguna Hills offers community development (code enforcement and building and safety), public safety, recreation, parks, public works, and general administration. The city contracts its police services with the Orange County Sheriff’s Department and its fire protection with the Orange County Fire Authority.
“I am enthusiastic about the opportunity to work with the City of Laguna Hills,” said California JPIA Senior Risk Manager Lucy Gonzalez. “During the application process, it was clear that city management and staff are committed to mitigating risk by proactively implementing safety and risk control measures for their residents and employees. They are also excited about further enhancing the quality of life in their communities by accessing our comprehensive risk management solutions, innovative programs, and significant training resources.”
Welcome, City of Laguna Hills, to the California JPIA!Print Article
Each July marks Park and Recreation Month, and this year’s theme, Where Community Grows, celebrates the vital role park and recreation professionals play in bringing people together, providing essential services, and fostering the growth of our communities. To commemorate the month, the California JPIA is highlighting the City of West Hollywood’s newest facility—the West Hollywood Aquatic and Recreation Center (ARC).
Located in the heart of West Hollywood, the LEED Gold-certified building stands as a testament to the city’s commitment to providing exceptional recreational opportunities that support the interests of its residents and visitors. The centerpiece of the four-story ARC is the aquatic complex, which suspends two pools above a multi-sport gymnasium and features a sculptural grand staircase that serves as a gathering spot and icon for the city.
“The Aquatic and Recreation Center is a bustling hub of community in West Hollywood with sports, activities, community meetings, and civic events,” said City of West Hollywood Mayor Sepi Shyne. “The grand staircase that rises out of the grassy lawn in West Hollywood Park ascends to two incredible rooftop pools with captivating views across the metropolitan area. The large-scale multi-sport court is already brimming with evening sports leagues nearly every day. It’s thrilling to be part of creating a top-tier public recreation facility, and it’s exciting to see people from every facet of our community enjoying it each day as part of staying healthy, active, and connected to the community.”
The new 75,000-square-foot space boasts an Olympic-sized swimming pool, diving platforms, dedicated water polo and synchronized swimming areas, and a recreational pool. It also has top-notch fitness amenities, including a modern gymnasium equipped with cutting-edge exercise equipment, fitness studios for group classes, outdoor exercise areas, a large-scale multi-sport court, spacious multipurpose rooms that serve as hubs for community gatherings, events, and educational programs, and a public access TV studio. The complex also includes two dog parks, picnic areas, art and cultural spaces, and the preservation of a neon sign of a diver.
The ARC created a wide array of design and engineering challenges. Connecting several city recreational elements in one, the building includes a sky bridge over the road that links the new facility to a community building with meeting rooms, a daycare center, and staff offices. Engineers designed a two-way truss system to suspend and support both pools above the multisport gym and maximize space on the level below. In addition, a lift system within the garage doubles the parking capacity on the first level of the facility.
“The Aquatic and Recreation Center (ARC) serves many distinct purposes. It combines leading-edge engineering advances with the latest technological innovation,” said City of West Hollywood Director of Public Works Steve Campbell. “With distinct zones for community meeting rooms, a sliding glass wall that opens an indoor event space to outdoor gathering space for civic functions, to the rooftop pools and indoor sport court, the ARC meets many community needs at once. In combining sports, swimming, and athletics into a new footprint, the project also adds enhanced green space in West Hollywood Park, where there were formerly aging single-story buildings. The approach means more park space for our community.”
In addition to LEED certification, the ARC has received multiple honors, including:
- The American Public Works Association (APWA) Southern California Chapter 2022 Project of the Year Award in the Buildings category
- The Honors Award for commercial design; and a C.O.T.E. Award for resiliency and sustainability in design from the American Institute of Architects Orange County Chapter
We commend the City of West Hollywood for completing the ARC. The facility is an example of the possibilities when a design process is built around creating a facility that supports various community interests. It is a shining example of the positive impact that parks and recreation can have on a community’s well-being and quality of life.
For more information about the West Hollywood Aquatic and Recreation Center, please visit the city’s website.
Photo by Jon Viscott courtesy of City of West HollywoodPrint Article
By David M. Lester, Partner, Atkinson, Andelson, Loya, Ruud & Romo
Originally printed on July 10, 2023. Reprinted with permission from Atkinson, Andelson, Loya, Ruud & Romo.
A wife sued her husband’s employer after she became infected with COVID-19 and was hospitalized. The case was removed from state court to federal court, and the federal district court dismissed her lawsuit because:
- her claims based on contact with her husband were barred by the exclusive remedy provisions of Workers’ Compensation Act (“WCA”);
- her claims based on indirect contact with infected surfaces failed to plead a plausible claim; and
- the employer’s duty to provide a safe workplace did not extend to nonemployees who contracted a virus away from the jobsite.
The case was appealed to the Ninth Circuit Court of Appeals, and that court certified two questions to be decided by the California Supreme Court in Kuciemba v. Victory Woodworks, Inc., 2023 WL 4360826 (Case No. S274191 July 6, 2023).
The first question to be decided was, if an employee contracts COVID-19 at the workplace and brings the virus home to a spouse, does the California Workers’ Compensation Act bar the spouse’s negligence claim against the employer? The Court answered no to the question, finding the exclusivity provisions of the WCA do not bar a non-employee’s recovery for injuries that are not legally dependent upon an injury suffered by the employee. This holding is consistent with the earlier decision of See’s Candies, Inc. v. Superior Court, 73 Cal. App. 5th 66 (2021), wherein a wife brought COVID-19 home to her husband, who died from the disease. The appellate court did not dismiss the wife’s wrongful death claim as being barred by the WCA.
The second question to be decided was, does an employer owe a duty of care under California law to prevent the spread of COVID-19 to employees’ household members? The Court held that no such duty existed because recognizing such a duty would impose an intolerable burden on employers and society in contravention of public policy. The Court noted that employees could encounter numerous potential sources of exposure to the virus every day from such activities as commuting to work or stopping at the grocery store on the way home. Tracing the source of an infection would be difficult at best. Moreover, the Court held that imposing a tort duty to each household member would throw open the courthouse doors to a deluge of lawsuits that would be fact specific, hard to manage, and clog the court system, and thus, was not in society’s best interest.
While the sole remedy for an employee who contracts a disease like COVID-19 in the workplace is the WCA, the same is not true if an employee exposes the family to such a disease. The family member might have an independent cause of action. If, however, the employee dies and a family member steps into the employee’s shoes and files a survivor action, the family member will be treated like the employee and wrongful death claims brought by the survivor will NOT be barred by the WCA. Thus, the Supreme Court has given employers a little more guidance on their responsibility for injuries arising from COVID-19, but more questions than answers still abound. Issues such as the scope of insurance coverage for COVID-19 claims are the next frontier facing employers and their potential liability.
This AALRR post is intended for informational purposes only and should not be relied upon in reaching a conclusion in a particular area of law. Applicability of the legal principles discussed may differ substantially in individual situations. Receipt of this or any other AALRR publication does not create an attorney-client relationship. AALRR is not responsible for inadvertent errors that may occur in the publishing process.
© 2023 Atkinson, Andelson, Loya, Ruud & RomoPrint Article