Tag Archives: sovereign immunity

Improvements in workplace safety in Lincoln due to some side-street snow plowing?

Posted on February 8, 2021 by Jon Rehm

Lincoln has been hit with an unusual amount of snow over the last two weeks. Last year, many Lincoln residents would have been stranded at home due to the lack of snow removal on side streets.

But the City of Lincoln announced in November that was partially reversing an 11 year-old city policy of not plowing side streets. The City announced a pilot program to remove snow on some side streets if accumulation topped four inches. The move comes after public outcry last winter about icy conditions in Lincoln’s residential neighborhoods.

Ice, snow, worker classification and slip and falls

Last winter, I blogged about how icy side streets were a workplace hazard for delivery drivers. In my view the risks to delivery drivers has increased since last winter as the COVID pandemic accelerated the rise of online shopping.

Icy streets and sidewalks also create additional legal risks as more delivery workers are misclassified as contractors rather than employees. Employees are covered by workers’ compensation for work injuries, contractors are not. Bluntly, Nebraska courts have tended to side with business in recent decisions about worker classification and workers compensation.

But even if a worker is legally barred from bringing a workers’ compensation claim for a slip and fall injury due to snow and ice, premises owners can be sued if their failure to reasonably remove snow and ice causes on injury. Property owners need to be diligent about removing snow and ice. A worker covered by workers’ compensation can bring a third-party claim if another party besides them or their employer is at fault for their injury.

Doing the right thing despite sovereign immunity

Private individuals and corporations can be sued for failing to remove snow, not so much with local governments. I am somewhat surprised the City of Lincoln changed course, because the City is basically immune from being sued for snow removal. The City is protected by sovereign immunity in general and a specific law immunizing local governments from liability for snow removal in particular. So why did the City of Lincoln, partially “walk back” a fairly long standing policy? I have a few ideas.

One icy side streets create a risk of injury for city employees like police and firefighters. Not only is there a risk of bodily injury, the City would also have to pay for damage to city vehicles. It may make financial sense for the city to plow side streets. Lincoln Mayor is Leirion Gaylor Baird is a Yale-educated, veteran of the elite consultancy McKinsey and Company. In short, she is a wonk. I take the City at their word that they engaging in what amounts to experiment.

But the City could also be responding to popular outcry about icy residential streets. Hey, we live in a little “d” democracy and governments are supposed to respond to popular pressure. I also think it could make sense from a dollars and sense perspective. But I do wonder if residential snow removal is sustainable from a budget standpoint. The City stopped doing residential snow removal in 2009. 2009 was during the so-called “Great Recession.” Lincoln is now suffering through the COVID-19 recession. So even if residential snow plowing could make sense financially and improve occupational safety, there may be pressure to cut the City budget in other places or to cut taxes to pay for additional services.

Lincoln is a prosperous city and I think the choice between clearing snow and ice from side streets and other city services is a false choice, but historically Lincoln city government has been reluctant to raise taxes to pay for additional city services

The hidden legal hazards of icy side streets

Posted on January 27, 2020 by Jon Rehm

Icy residential streets in Lincoln caused problems last week for commuters and workers alike. (Photo via Google Images and 1011now.com)

I usually flip through the FM dial on my drive into work in the morning. Last Tuesday, I flipped to Lincoln Top 40 mainstay, KFRX, and heard a delivery driver talk about the hazards he encountered on Lincoln’s icy side streets.

Icy side streets, plagued Lincoln from Air Park to Vintage Heights until last Wednesday. But this hazard can create other kinds of hazards for workers who are forced to navigate slick side streets.

While icy residential streets may seem like a preventable hazard, the law gives cities like Lincoln little incentive to clear side streets.

Hidden hazards of slick streets for delivery drivers

When the roads are bad and weather conditions are cold, most people don’t like leaving the house. With the advent of online shopping and food delivery apps, consumers can order food, shop online, and stay inside.

But someone needs to deliver what is ordered online. Those delivery drivers who bring those goods are at an increased risk of injury and property damage due to icy side streets.

Assuming a delivery driver is an employee, injuries from icy roads incurred in the course and scope of employment should be covered by workers’ compensation.

But many delivery drivers are classified as independent contractors. Most if not all, delivery people, should be employees for the sake of workers’ compensation. But workers don’t always know their rights and often intimidated by employers. As a result, misclassified delivery drivers may end being stuck with the costs of their own work injury.

Third party claims for icy driveways and sidewalks, but not icy streets

If the injury is the fault of someone else, an independent contractor can bring a negligence claim. Even a worker covered by workers’ compensation claim can bring a so-called third-party claim if another party besides them or their employer is at fault for their injury.

But not all negligence related to icy conditions is legally actionable. Yes, a delivery driver can sue a homeowner who doesn’t remove snow for negligence. But thanks to sovereign immunity, it’s difficult if not almost impossible to sue a city for not clearing icy side streets.

Kings don’t need to plow their subjects side streets

Sovereign immunity is a legal fiction borrowed from English law that you can’t sue the king for his wrongs. The Declaration of Independence, George Washington, the Battle of Yorktown and all that other good stuff aside, American governments decided to adopt this British doctrine. (After all, it’s good to be king)

In Nebraska, the Political Subdivisions Tort Claims Act (PSTCA) dictates how and for what conduct political subdivisions can be sued. Political subdivisions, like cities, can’t be sued for decisions made by policy makers. These functions are called discretionary functions. Lincoln Transportation and Utilities Director Tom Casady, a former Lincoln police chief and longtime city hall fixture, used exactly that language in explaining (or excusing) why the City of Lincoln waited until Wednesday to plow side streets.

In addition, just for belt and suspenders to use a legal term, political subdivisions can’t be sued about snow and ice removals on public roads.

Strong-mayor systems and sovereign immunity

Lincoln (and Omaha) are governed under so-called strong mayor systems which means appointed officials within the executive branch are given broad leeway to make policy decisions. This probably gives Lincoln officials another layer of legal protection against litigation over poor street conditions.

Solutions for slick side streets?

A combination of warmer weather, more snow and probably some public outcry lead Lincoln to plow side streets. A more long-term solution for slick side streets in Lincoln could lie with the City Council voting more money for snow and ice removal. The Legislature could also modify the PSTCA to allow cities to be sued over snow removal. Either scenario seems unlikely at present.

Ultimately residents could band together to clear side streets on their own through homeowners and neighborhood associations. I don’t like that option in the long run or big picture because it would tend to favor wealthier neighborhoods and would undermine confidence in government in general and city government in particular.

Four rules of thumb about disability accommodation and public employees

Posted on April 15, 2019 by Jon Rehm

Public employees protesting in Wisconsin in 2011

A few weeks ago Brody posted about the story of a paramedic who ultimately did receive workers’ compensation benefits for a solely mental injury. I agree with Brody that it’s great that first responders can receive workers’ compensation benefits for mental distress on the job not related to a physical injury.

When I read Brody’s post, it reminded me of few informal rules or principles I’ve learned from helping injured workers with their employment law issues for the last 14 years.

Government employers can be difficult. I have a few theories why. First of all, they can invoke sovereign immunity as a defense to any potential unlawful acts. Secondly most of them are self-insured which means any claim made by an employee comes out of tax funds rather than from an insurance policy. Finally since, government employees are entitled to some procedural due process before a termination, government employers go out of their way to build a case for termination. This case building by management can take a terrible mental toll on employees who are being targeted for termination.

Unions are good: Most union contracts require that an employer just cause for termination. That’s usually true for public sector employees as well. But union representation usually means that an employee can receive a substantively fair process when facing difficulties at work. Union officials often know about past practices and can effectively deal with bad behavior by an employer short of attorney involvement. Union contracts often include arbitration rights to dispute a termination, but those rights are often meaningless without an attorney. Unions often foot the bill for an attorney to represent an employee in arbitration.

Disability accommodation is often a bureaucratic nightmare: Under the ADA, employee and employer and supposed to meet in an informal, interactive process to determine how to accommodate disability. What often times happens is that management decides to second guess doctors’ restrictions or ask for endless clarifications. The process becomes adversarial and driven by paperwork.

Mental disabilities aren’t treated the same as physical disabilities: Mental disabilities can present somewhat of a challenge as they are more difficult to measure than physical disabilities. It’s difficult to manage what can’t be measured, but accommodations for a mental injury can be as simple as accommodations for a physical injury if an employee and employer sit down in good faith.

I also believe that employees who suffer from mood disorders are often considered risks for violence if they are having difficulties in the workplace. Studies show the mentally ill are no more likely to be violent than those without a mental health diagnosis. A mentally ill employee who is struggling with job tasks or getting along with co-workers may be not be a qualified employee with disability, however that does not give employers carte blanche to deem an employee with a mental illness to be a threat for workplace violence.

Workers' Compensation Watch

Published by Rehm, Bennett, Moore & Rehm

Published by:

Tag Archives: sovereign immunity

Improvements in workplace safety in Lincoln due to some side-street snow plowing?

The hidden legal hazards of icy side streets

Four rules of thumb about disability accommodation and public employees

Share this:

Share this:

Share this: