Caring for Oklahoma Municipal Cemeteries

For many, this will be the first year to honor their loved one on Memorial Day.  Ribbons, flowers, flags, balloons, and crosses decorate resting places and celebrate those held dear.  Although the decorations begin appearing the last weekend of May, preparation of the cemetery began months ago.  When family or friends visit, all they will notice is the condition of their loved one’s grave. You want to make sure that what they see is a clean, well-maintained site.

In maintaining the cemetery, the single most damaging lawn maintenance activity (to headstones) is mowing.  In addition, mowing is frequently the single largest cemetery expenditure.  It is critical that lawn mowing is done in a manner the protects the monuments, as well as the lawn.  The most serious issue is the routine removal of grass in the immediate vicinity of gravestones and tombs.  The best practice is to mow to within 12-inches of markers and finish the work using hand shears.  This approach, however, is almost universally cost prohibitive.  Another approach is the permanent removal of grass around the bases of stones.  The solution is usually discouraged since it creates an unnatural and unattractive landscape and its long-term maintenance creates additional costs and threats to the stone (especially since there will be an inclination to use weed killer as a simple solution).

The best workable solution is to use no power mower within 12-inches of the markers.  Weed whips (rotating nylon filament trimmers) may then be used – with extreme care – to finish the job up to the stone.  For these procedures to cause minimal damage, four precautions are absolutely critical:

1. The maintenance crew must be carefully trained and closely supervised.  They must understand that the historic markers are very fragile and that the activities used on residential or commercial grounds are unacceptable for cemeteries.

2. Only walk behind mowers should be used – riding mowers offer too little control and operators are too inclined to take chances in an effort to speed the mowing up and get on to another job.

3. All mowers – even when used no closer than 23 inches – must have bumper guards installed to offer additional protection.  This can be achieved by using cable ties to attach closed cell foam, such as that used for the insulation of pipes, to the sides, front, and rear of all mowers.

4. The nylon string in the trimmers must be the lightest gauge possible – no heavier than 0.09 inch.

Perhaps the best protection from mower damage, however, is the active involvement of the superintendent in the oversight of landscape maintenance operations – inspections by the superintendent should be made during and after mowing operations.

Weed Trimmer Safety Tips

Weeds have a tendency to sprout alongside walkways, buildings, and cemetery headstones on municipal grounds. Few lawn mowers can safely get into these edges and corners as needed to cut weeds and tall grass. A weed trimmer is the best way to reach these spots. Consider the following safety tips for using weed trimmers.

Prepare the site – walk the area to be trimmed prior to starting. Remove debris, sticks, stones, and other obstacles or potential hazards. Make sure there are no people or pets in the area and stay alert to anyone or anything entering your workspace while trimming. Prepare the weed trimmer by checking the safety guards and shields, making sure they are in place. Verify there is enough nylon line in the spool. Fill the fuel tank and always allow the engine to cool down before refueling.

When trimming, keep in mind that lawn trimmers can throw objects at high speeds, so avoid working near people, vehicles, and delicate building structures. Never attempt to adjust or repair a weed trimmer while the engine is running. Keep the line short so it does not extend past the guard on the head of the weed trimmer. Keep one hand on the handle and one hand on the shaft of the trimmer to provide greater control. If provided, use a shoulder strap for support to help with weight and vibration of the weed trimmer. This can help prevent back, shoulder, and arm fatigue or strains. When trimming, keep the throttle at full speed, but be able to maintain control of the trimmer. Swing the trimmer in a slow smooth arcing motion. Move the trimmer forward and step forward to cover more ground. Don’t over extend the trimmer with just your arms or bending forward, as this could cause excess fatigue.

Watch for hidden obstacles like wires, fence posts, rocks, or bricks that could cause the trimmer to bounce backwards or entangle the line and jam the trimmer. This could cause injury to the operator or damage the equipment. Wear work boots, hearing protection, eye and face protection, long pants and long-sleeved shirts to protect your body.

Working outside, other personnel safety precautions include dealing with weather and natural conditions. Consider the following additional safety tips while using weed trimmers. If you are working near a street or roadway, wear a reflective vest. Be aware of nearby traffic and parked vehicles and position yourself so you won’t accidentally throw objects into traffic or vehicles. Don’t listen to music with headphones, as it can be a distraction and add to noise exposure. Use sun block and wear a hat to protect from sun exposure. Use an insect repellant with at least 10% DEET to protect from mosquito and tick bites. Stay hydrated, drinking about 8 ounces of water every 20 minutes. Be able to identify and avoid poisonous plants like poison ivy, poison sumac, and nettles. Watch out for venomous spiders, caterpillars, and snakes. Keep a first-aid kit handy and include EpiPens and a snakebite kit in the kit.

The key to safe operation of weed trimmers varies; select the proper type of weed trimmer for the job. Make sure operators are properly trained to use the equipment. Survey the work area and identify or remove obstacles and hazards. Don’t work around people or pets. Inspect and maintain your equipment frequently and follow the manufacturer’s maintenance and safety instructions. Wear the appropriate personal protective equipment (PPE). Compliance with these safety considerations can help better protect workers, citizens, and the municipality from injury, property damage, and tort claims.

Why is a $1,000,000 Per Occurrence Policy Limit Enough?

Why does OMAG have a $1,000,000 per occurrence Policy Limit when there is no limit to civil rights liability under 42 U.S.C. §1983?

OMAG is not a commercial insurance carrier. OMAG was created by the execution of an interlocal agreement, making OMAG an extension of its member municipalities. The purpose of OMAG, as authorized expressly in the Governmental Tort Claims Act, 51 O.S. §167(C), is to allow municipalities to pool their self-insured risk with one another. Id. see also City of Choctaw v. OMAG, 2013 OK 6, 302 P.3d 1164 and Bd. of Cty. Commissioners v. ACCO-SIG, 2014 OK 87, 339 P.3d 866. The extent of the municipal exposure in tort on any given incident is $25,000 per claim property damage, $125,000 (except for the largest municipalities, all of which retain all self-insured risk) for all other claims, and a total cap of $1,000,000 for any combination of claims. 51 O.S. §154.

Obviously civil rights liability under 42 U.S.C. §1983 is not subject to the limits of the GTCA. That said, under §1983, the civil rights claim must be brought against the “person” who, while acting under color of law, violated a clearly established constitutional right. The US Supreme Court, in Monell, v. Dep’t of Soc. Servs., 436 U.S. 658, 690-91 (1978) held that a local government could be considered a “person” under §1983 but only to the extent that the Plaintiff could show that the entity caused the violation of the Plaintiff’s rights. This is what is commonly referred to as the policy, practice or custom requirement and requires a showing that the entity caused the loss by some policy, practice or custom it has adopted that caused the employee to cause the deprivation of a Constitutional right. This is an incredibly high bar to clear, especially considering the dialogue to come. But, in short, it is very difficult to successfully sue a governmental entity for civil rights violations.

The real exposure in §1983 is for the individual public employee who allegedly acts under color of law to violate a clearly established constitutional right. Unlike the entity in a Monell claim, the employee enjoys the protections of qualified immunity. Unlike the entity, however, an employee is liable for their actions if those actions violated a clearly established right (Monell would attach only after the showing of a violation if, and only if, the Plaintiff could also show that the employee acted per the direction of a policy, practice or custom). Why is this the City/Town's problem if the City/Town is not a named party?

Under the GTCA, the City/Town is obligated to defend and indemnify its employee(s) in §1983 claims so long as the employee was acting within the scope of their duties under the GTCA. 51 O.S. §162. The key provision that answers the question is found in §162(A)(2) which states that the indemnification obligation is limited to the GTCA tort cap limits in §154 – i.e. to $1,000,000.

Simply put, the City/Town is obligated to defend its employees (subject to their being in the scope of employment) in §1983 claims regardless of the cost. The City/Town is obligated to indemnify its employees in §1983 claims (subject to scope of employment) up to the tort cap of $1,000,000. OMAG fully insures this liability exposure by (1) fully defending the City and employees in all claims without the defense costs eroding the limits of our liability and (2) fully insuring the City for the GTCA per-claim caps and total aggregate cap and (3) fully insuring the City and employees up to the total liability exposure that the City is legally obligated to cover of $1,000,000. OMAG tailors its limits to the taxpayer legal liabilities – nothing more, nothing less. Many commercial carriers offer higher limits and, in doing so, expose the taxpayer to higher premiums to cover a liability risk that they are not subject to. They literally are insuring a risk that does not legally exist.

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This Loss Bulletin was written by Matt Love, Deputy General Counsel and Claims Director.  You may contact the author at (405) 657-1400.  The information in this bulletin is intended solely for general informational purposes and should not be construed as or used as a substitute for legal advice or legal opinion with respect to specific situations, since such advice requires an evaluation of precise factual circumstances by an attorney.

Risk & Safety News: Emergency Response Issue

Emergency Action Plan Basics

The following are basic things to be prepared for and do in specific emergency situations:

Wildfires:

• Wildfires can occur anytime or anywhere, but the potential is always higher during periods with little to no rainfall; high winds can contribute to escalating wildfire risks

• Make a wildfire plan – know where to go and which evacuation routes to use to get there

• Make or restock your emergency preparedness kit; include flashlight, batteries, cash, first-aid supplies, food, and water

• Stay tuned to alerts via phone, radio, or television for updates, emergency instructions, or evacuation orders

Prepare before a wildfire

• Keep a clear area approximately 30 feet away from buildings. Clear away anything that will burn like wood, leaves, brush, and other landscaping

• Create fire breaks such as driveways, walkways, and tree/bush free lawns

• Regularly clean roofs and gutters of combustible debris

• Connect a garden hose long enough to reach any area around the building and fill large containers with water

• Review your insurance policy and prepare or update building contents

During a wildfire

• Be prepared to evacuate on short notice

• If you see a wildfire and haven’t received any alerts or evacuation orders, call 9-1-1 and report it; don’t assume someone else has already called it in

• If ordered to evacuate, do it immediately and make sure to notify someone where you are going and when you arrive

• If you or someone has been burned, call 9-1-1 or seek help immediately; keep the burned area cool and covered to reduce the chance of infection or further injury

After a wildfire

• Return to facilities only when authorities say it is safe

• Maintain a fire-watch for several hours checking for smoke, sparks, or hidden embers that may reignite

• Use caution when going through burned areas; hazards may still exist including hot spots and potential gas leaks or electric lines

• During cleanup wear a NIOSH certified respirator (dust mask) and wet debris down to minimize breathing ash particles

• Discard any food that has been exposed to heat, smoke, or soot

• Do not use water that may have been contaminated to wash dishes, brush teeth, prepare food, wash hands, or make ice

• Photograph damage for insurance purposes

Tornadoes:

Oklahoma has one of the highest number of tornadoes in the U.S. and they can occur anytime during the year.

Preparing for a tornado

• Identify safe rooms, storm shelters, or other potential protection locations where you can go quickly for safety when there is a warning or approaching tornado

• Have an emergency kit handy with flashlight and batteries, water, snacks, blankets, weather radio, and first-aid kit

• Be alert to changing weather conditions; Look for approaching storms; look for danger signs:

  •            Dark, often greenish sky

  •            Large hail

  •            Large, dark, low hanging clouds (particularly if they appear to rotate)

  •            Loud roaring noise

  •            Flying debris in the air

Know the terms:

Tornado Watch – conditions warrant the possibility that tornados could occur

Tornado Warning – a tornado has been sighted or indicated by weather radar. Take shelter immediately

After a tornado

• If you are trapped, do not move about or attempt to move objects; tap on a pipe or the wall to help rescuers locate you

• Listen for updates and instructions from local officials

• Check in with family or friends via texting or social media

• Watch out for sharp dangerous debris and downed power lines or gas leaks

• Stay out of damaged buildings until authorities deem them safe

• Wear protective clothing, dust masks, and gloves during clean up; don’t attempt to move heavy debris by yourself

• Do what you can to prevent further damage to property (putting up tarps, etc.) since insurance may not cover additional damage that occurs after the storm

• If the building is without power use flashlights or battery powered lanterns rather than candles or fuel lanterns

• Take photos of damaged property; keep a list of property in buildings in a safe location like the cloud

Floods

Flooding can occur in Oklahoma during every season, but spring holds our biggest threat. It is particularly important to be prepared for flooding in low-lying areas near rivers, creeks, and lakes.

Basic Flooding Safety Tips:

• If you approach flooding streets when driving; Turn Around, Don’t Drown! Avoid walking or driving in floodwaters

• Don’t drive over bridges that have fast moving water. Floodwaters can scour foundation material from around the footings and make the bridges unstable

• Just 6 inches of moving water can knock you down and sweep you away; 1 foot of moving water can wash your vehicle away

• If there is a chance of flash flooding, move immediately to higher ground

• If floodwaters rise around your vehicle but the water is not moving, abandon your vehicle and get to higher ground.  Do not leave the vehicle if the water is moving

• Avoid parking along creeks and rivers during heavy rains. They can flood quickly with little warning

Terms to know:

Flood Watch = Be Aware, conditions are right for flooding or flash flooding in your area

Flood Warning = Take Action, flooding is either happening or will shortly

Preparedness:

• Turn on the TV or radio to receive the latest updates on weather and emergency instructions

• Know where to go in case you need to seek higher ground in a hurry

• Make or restock an emergency kit. Include: flashlight, batteries, first-aid supplies, dry clothing and blankets, water, and snacks

After a flood:

• Return only when authorities say it is safe

• Be aware of areas where floodwaters have receded; watch out for debris. Floodwaters often erode roads, walkways, and foundations of buildings

• Do not attempt to drive through areas that are still flooded

• Avoid standing water as it may be electrically charged from underground or downed utility lines

• Photograph damaged property for insurance purposes

Earthquakes:

Earthquakes are unexpected, sudden, rapid shaking of the earth caused by breaking and shifting subterranean rock. After the quake aftershocks may occur causing further damage.

Preparing before an earthquake:

• Secure items that could fall or move and cause injuries or damage (bookshelves, mirrors, light fixtures, etc.)

• Practice how to “Drop, Cover, Seek Shelter and Hold On” drop to the ground, cover your head and neck, crawl to a place where you can be protected (under a table) and hold on

• Properly store documents. Keep water and first-aid supplies on hand as well as food, clothing, blankets, flashlight and batteries

• Plan where to go, should an earthquake occur, and have an alternative way to communicate with your family

During an earthquake:

• Drop, Cover, Seek Shelter and Hold On

• Stay where you are until the shaking stops. Don’t run outside. Do not get in a doorway as this does not provide protection. Be very careful, move slowly and test your footing as you move into an open area

• If you are outside when the shaking starts, move away from buildings, streetlights, and utility wires. Drop, Cover, Seek Shelter and Hold On until the shaking stops

After the earthquake:

• When the shaking stops, look around. If the building is damaged and there is a clear path to safety, leave the building and go to an open space away from damaged areas

• If you are trapped, do not move about or kick up dust

• If you have a cell phone use it to call or text for help

• Tap on a pipe or wall to draw the attention of rescuers

• Once in the clear, if you are not injured, provide assistance to those in need however you can

• Use extreme caution during post-disaster cleanup. Wear protective clothing, work gloves, and sturdy boots

• Be prepared for aftershocks. Drop, Cover, Seek Shelter and Hold-on

Active Shooter:

Don’t think terrorism, bomb threats, and active shooter incidents only happen in big cities. They can occur anywhere and anytime. Have a plan in place and train your employees on what to do if confronted with an active shooter.

Planning:

• Train employees to be aware of their surroundings and to observe what is going on with people (their demeanor, remarks, body language) that makes them uncomfortable and ill-at-ease. Report suspicious behavior to authorities

• Identify the two nearest exits anywhere you go, and have an escape path in mind or find good places to hide

• Understand how you would provide for individuals with disabilities or other access and functional needs

During an Active Shooter incident: 3 Options - Run, Hide, Fight

• Run - escape if possible; getting away from the shooter(s) is the top priority

• Leave your belongings and get away

• Help others escape, if possible, but evacuate regardless of whether others agree to follow

• Warn and prevent individuals from entering an area where an active shooter may be

• Call 9-1-1 once you get safe, and describe the shooter(s), location, and weapons

• Hide - get out of the shooter’s view and stay quiet. Lock and block doors, close blinds, turn off lights, turn off your cell phone’s ring and vibrate options

• Don’t hide in groups.  Instead, spread out along walls or hide separately; don’t make it easy for the shooter

• Try to communicate with police silently through text messaging or social media, or put a sign in a window

• Stay in place until law enforcement gives you an all clear or comes for you

• Make sure your hiding place provides you with protection if shots are fired through the door or walls

• Fight - as an absolute last resort. Commit to your actions, be as aggressive as possible against the shooter(s)

• Recruit others to ambush the shooter using makeshift weapons (chairs, flagpoles, fire extinguishers, scissors, whatever you can find as a weapon)

• Be prepared to cause severe or lethal injury to the shooter

After the Active Shooter incident:

• Keep hands visible and empty; know that law enforcement’s first task is to end the threat; they may have to pass the injured along the way until they have secured the area

• Follow law enforcement instructions and evacuate in the direction they come from

• Officers will be armed with rifles, shotguns, and handguns; they may use pepper spray or tear gas to control a situation

• Officers will shout commands and may push individuals to the ground for their safety

• Consider seeking professional counseling for you and your family to cope with long-term effects of the trauma

• Take care of yourself first, then you may be able to help the wounded before first responders arrive

• While waiting for first responders, provide first-aid, apply direct pressure to wounds and use tourniquets if you are trained to do so

• Place wounded people on their sides if they are unconscious and keep them warm

Many municipal law enforcement departments are providing training for staff and citizens concerning “Active Shooter” incidents. For more information contact your local police department to find out how a training may be arranged.

Emergency Planning: ESFs = Relationships

After patrolling the streets and training police officers for The City of Oklahoma City for over 15 years, I found myself assigned to The Office of Emergency Management.  My first task was to assist in the development of an Emergency Operations Plan (EOP).  I dusted off the Civil Defense Plan from the 1960’s and 70’s.  The old plan was of little to no help to me at all.  The Emergency Manager and I contacted FEMA and turned to the Federal plan for guidance.  This was my first encounter with Emergency Support Functions (ESFs). In developing the city’s new EOP, it was crucial to not only identify which functions applied to us, but to also identify the appropriate departments and agencies that would provide the essentials of those functions. I would also need to seek out who would be coordinating that function.

The ESFs provide the structure for coordinating interagency support and they group functions most frequently utilized during disasters and other catastrophic incidents. The ESFs are designed to coordinate closely with one another to accomplish their missions. An essential step in my personal process was to meet each ESF coordinator.  I visited with department and agency heads, face-to-face, and together we evaluated their resources, developed a draft ESF, and met again to review our work.  I did not rely solely on the obvious.  I asked each coordinator what else they could do. What tasks could they perform? What were their capabilities? During these interactions, I was able to put a face to a name and develop a good working relationship with each coordinator.  I refused to have my first meeting with these people during a disaster response or event call-out.

Within the OMAG membership, our cities and towns may be the size that we know everyone that works for our municipality. What we may not know is what resources we each have to offer. Which functions can we support and which functions will we need to turn to the community or outside agencies to fill? A municipality may need to turn to Ham Radio Operators to assist with emergency communications or a local restaurant owner to help with providing meals for disaster victims and workers. These relationships need to be developed NOW! 

Get out and about.  Have coffee or sweet tea with Department Heads.  Exchange ideas.  Put a plan in place.  Practice that plan.  Your response will be more effective and less hectic. 

To learn more about the development of your Emergency Operations Plan and ESFs, search many quality resources at fema.gov.

Five First-Aid Tips & Tricks

1. Direct Pressure Stops Bleeding – Serious bleeding from a major blood vessel or artery is a life-threatening emergency. The best way to stop severe bleeding is to apply firm, direct pressure directly over the bleeding wound.

2. Anyone Can Use A Defibrillator – Automated External Defibrillators (AEDs) deliver an electrical shock to help victims of sudden cardiac arrest. A cardiac arrest occurs when the heart stops beating due to a problem with electrical activity. Public buildings should have an AED station on hand, mounted in plain sight and marked with a sign. An AED is designed to be used by anyone. They are fully automated and have voice prompts to guide the user through the steps. Providing employees with an annual training on the use of an AED could save lives.

3. Nosebleeds – Tilt the head forward, not back! The best way to stop a nosebleed is to pinch the soft part of the nose for a minimum of 10 minutes while having the person lean forward.

4. Water for Burns – Cooling a burn quickly is vital to prevent further damage to tissue. The best way to cool a burn is running water. Putting anything else on a burn (such as butter or toothpaste, etc.) will not be as effective at removing heat and stopping the burning process.

5. Chest Compression Rule – The most important component of CPR is high quality chest compressions. If you are unable or unwilling to do rescue breathing, then don’t. Instead do continuous chest compressions until medical help arrives.

March 2018 Risk & Safety Newsletter