Managing Liability for the New Year

In late December, 2006, we learned of the death of former President Gerald Ford who was spoken of as a great public servant. Sadly, just ten days before Christmas 2006, our nation lost another great individual, one who truly lived up to the title of public servant but one which the majority of Americans will never know of. His name was Mr. Jim Durant, and he was a police volunteer with the Scarborough, Maine, Police Department. On the evening of Thursday, December 14th, while on duty, Mr. Durant was dispatched to the scene of a traffic accident, and under the direction of sworn officers he assisted others with traffic control duties. By all accounts, Mr. Durant had taken all the necessary safety precautions one would, and was wearing his reflective safety vest, was equipped with a proper flashlight, and was trained to perform this function. Sadly though, while performing this task Mr. Durant was struck from behind by a vehicle, and sustained critical injuries. He passed away the following day.

While the reality is you're more likely to be struck by lightning than be killed just because you're a civilian police volunteer, the fact of the matter is, depending on what duties you perform, it can be a dangerous task. Not surprisingly, Mr. Durant lost his life to one of the top reasons for the loss of life for all sworn officers in the United States--traffic related fatalities. Regardless of how many precautions one may take, whenever you place yourself in a position where there are moving vehicles passing by, accidents can and do occur. More information regarding this tragic loss may be found at the memorial page for Mr. Durant at the web link listed at the bottom of this article.

The Reality of Liability.

As in the very tragic case of Mr. Durant, no one can argue that the potential for injuries and/or death can and do exist when volunteers perform certain tasks equal to that of sworn officers. The important point, however, is how are the volunteers trained for these tasks, what policies and procedures are put in place to reduce accidents and injuries, how are they implemented and just as importantly, do the volunteers themselves understand the risk involved with the duties they are to perform?

With the new year upon us, now is a great time for a "liability check up" as it relates to your volunteers. As I discussed in my February, 2006, article, That Nasty L Word, there are three basic types of liability as it relates to volunteers: conceived, perceived and real, the latter being as the name implies, the hard and fast issues that relate to injuries and lawsuits which is what we'll focus on in this article and how to avoid them.

Train as if your life depended upon it.

When all is said and done, the fact of the matter is yes, there is real liability associated with using civilian volunteers in law enforcement, just as there is with sworn full time officers. Think about this for a minute--how is it that a law enforcement agency can hire a young man or woman, as young as 21 years old, perhaps with very little life experience, and put him or her on the street, by himself, with a gun and expect little liability in return? The answer is in addition to the extensive screening and testing before hiring them, they subject them to a well designed and demanding training program, which tests their abilities throughout the program. Upon graduation the officer must then undergo another extensive field training program for which they are again tested and graded on their capabilities to carry out the duties placed upon them. As such, your agency's volunteers should undergo and be expected to pass a standardized training course equal to, if not greater than, that of your officers for similar duties they may perform such as traffic control or other hazardous duties.

What's interesting to note is that although traffic related injuries are one of the top, if not the top cause of fatalities for our nation's law enforcement officers, it appears to be a very low priority when it comes to training. For example, of the over 600 hours and 42 "Learning Domains" required by California's POST to graduate from a basic police academy, only 12 hours are dedicated to "Traffic Accident Investigation," and of that only a small percentage of time is dedicated to officer safety in traffic situations. On the other hand, non-police agencies, such as state Departments of Transportation whose day-in and day-out job is to work the streets, roads and highways, spend a fair amount of time training their workers on personal traffic safety skills. Considering the low percentage of loss of life sustained by DOT workers, perhaps it may be worthwhile asking a representative from your state's DOT to conduct traffic control training for your volunteers as subject matter experts.

If it wasn't written, it wasn't said.

Policies and procedures manuals are for the most part a collection of documents that spell out what you've been trained or told to do and what not to do. While reading it will work wonders for anyone who has trouble sleeping, from a legal standpoint they are a "must have." As they used to drill into our heads at Radioman School in the Coast Guard, "If it was written, it wasn't said," and "if it wasn't documented, it didn't happen."

To put this a little more into perspective, I suggest to the attendees of my two-day volunteer management workshops to try visualizing yourself in court on a witness stand, being grilled by a attorney who is suing your agency for whatever it is a volunteer may have done to provoke the lawsuit. The attorney is asking you, "Mr. or Mrs. Volunteer Coordinator, you've told the jury that you specifically forbid your volunteers from doing XXX, can you please show me where this is documented?" If you can't, you had better prepare your agency to start writing out a big check to that attorney's client. The bottom line is the spoken word means very little in court, unless you can back it up with documentation or some very credible witnesses.

Long story short, if you don't have a written policies and procedures manual detailing what your volunteers can and cannot do, in addition to a training manual outlining their training program, now would be a good time to get started on one.

Statement of liability and potential for injury.

Another factor overlooked by some agencies is ensuring their volunteers understand the potential risks and their own personal liability involved while on duty. For agencies who use volunteers for administrative functions only, this may be a minor issue. However, as volunteers move from the office and into the field such as with Citizens on Patrol, Parking Enforcement Teams, Traffic Control Support, etc., the potential for risk and liability naturally increase. It's important for your volunteers, and for that matter, their spouses and family to understand the risk involved as people can, do, and unfortunately, will continue to be injured and killed while performing these tasks.

While injuries involving law enforcement volunteers are very, very low, the risk of lawsuits is unpredictable. Unfortunately there are always a few attorneys out there who are willing to file suit against your agency, hoping for a quick settlement to make it go away. The best defense against a valid lawsuit involving volunteers is the same for your sworn personnel: the knowledge that operating outside their scope of authority or policies could result in personal liability. Hopefully the volunteers you select are as professional as your full time sworn officers. However their not being in the field day to day, the reality of personal liability may not be as obvious to them. It's important that all your volunteers understand this, and one of the best ways to ensure it is with a Personal Liability Statement. Simply put, this form, to be read and signed by your volunteers, should clearly state that acting outside the scope, authority and/or polices and procedures of your department could subject that individual to a lawsuit against them for which the department will not defend. As such, they could be subject to monetary and/or property loss or worse, depending on the circumstances, jail time.

To sum it all up, just as a new officer is developed, so should the new volunteer be screened and trained in an appropriate manner to what their job entails. Agencies who treat their volunteers as staff members from the very beginning benefit from having just that, an unpaid staff member who will give you years of loyal service with an extremely high return on initial investment.