New Hampshire Town and City
Special Events: Whose Party Is This, Anyway?
New Hampshire Town and City, October 2009
As local officials, we are often asked for permission to use public facilities. This may involve indoor events, such as an anniversary party in the town hall, or an educational talk in the library, or an evening of training at the fire department. Outdoor events may involve use of sports or recreational facilities for adult league play, or a summer road race on local roads, a soccer or tennis camp operated by a private vendor on a public facility, or outdoor concerts at a local park. Most of these requests are routinely granted, because they add to the quality of community life. However, the potential for injury and liability is always present, so thought should be given to how the events are organized so that all of the persons and entities involved are adequately protected against an unreasonable risk of loss.
Q. Isn’t it enough for us to issue a permit for the special event?
A. While a permitting process is a good thing, the permit simply gives permission to someone to use public property, and does not necessarily take all of the steps needed to reduce the possibility of harm.
Q. How do we know which types of events need special consideration?
A. One useful way to categorize events is to look at who has organized the event, and has control over the way the event is operated. For example:
Direct events: The municipality and its staff have primary responsibility for the event, and select the persons who will serve as volunteers. The budget for the event is included in the municipal budget, and proceeds are retained by the municipality. All advertising is under the control of local officials, and the public safety departments directly support and staff the event. Because there is complete municipal control of the event, municipal insurance coverages are available, and steps can be taken to manage risk.
Special interest events: Individuals or a group have primary responsibility for the event, and select all persons who will staff the event, or serve as vendors. All funds are received and retained by the individuals or group. Advertising is controlled and conducted by the individuals or group, who determine which type of media is used for the purpose. Public safety departments may participate by special detail, the cost of which is billed to the individual or group. Even though the general public may not be invited to attend the function, the municipality is involved because it has authorized the private use of public property.
Hybrid events: The municipality and its staff work in conjunction with individuals or a group to plan and conduct the event. While the municipality provides the place for the event, and may contribute public safety coverage, it will not select and control all of the staff, volunteers or vendors. Some funds may come to the municipality to cover the direct costs of the event such as special details, but individuals and groups will sell food or conduct other fundraising events and retain those funds for their own purposes. Advertising may be split between municipal and private control.
In these situations, municipalities have the most control over and responsibility for direct events, little control over special interest events, and only a moderate level of control over hybrid events.
Q. We have some very dedicated citizens who help the library, recreation department and fire department. Sometimes they hold events and either contribute the proceeds to the department, or buy something the department needs and give the item directly to the people in the department. Are there concerns with these arrangements?
A. Yes. While contributions of time, money or property are helpful and appreciated, these activities must be correctly organized in order to protect both the municipality and the volunteer against an unreasonable risk of liability. Look at RSA 508:17, and you will see that a volunteer is protected only when there is prior authorization to serve as a volunteer, when the actions are undertaken in good faith and within the scope of the volunteer’s duties, no compensation is received, and the services do not involve transportation or care of the premises of the municipality. When funds or property are given to the municipality, they must be formally accepted by the local governing body under the procedure set forth in RSA 31:95-b and 31:95-e.
If individuals are acting on their own, this statute will not serve to protect them in the event of a claim. Money or property that is transferred directly to a department other than the library without formal acceptance by the governing body cannot be legally accepted or used by the department. The individuals may have individual tax or other liabilities that arise from their control of these funds or properties. In these situations, the individuals may risk personal liability and loss as a result of their actions, even if the activity was undertaken with the best of intentions.
Q. What are the steps that we should take to evaluate requests for the “special interest event"?
A. Because the municipality will have little control over the people involved and the receipt of funds, the idea is to transfer the risk of loss over to the special interest event organizer. A permit for use of the property should be required and issued. The user should be provided with a written agreement that sets forth the conditions for use of the property, the time that the use starts and ends, and any fees that will be charged for either the use or the maintenance of the property. In every case, the user should be required to provide evidence of its own liability insurance coverage, since the municipality’s coverages will not protect against loss in these events. The proposal should be evaluated by a team that includes the governing body and the public safety departments to assure that the permit will include any special conditions needed to encourage a safe event. In virtually all situations, alcohol consumption should be prohibited, unless special insurance coverage for this purpose has been obtained, and adequate public safety coverage is provided.
Q. What about the “hybrid event," since the municipality is also involved as a participant in the event?
A. This is more difficult, because the individuals and groups are working with local officials as partners to conduct the event. Here, there needs to be a clear written agreement as to the responsibilities and contributions of each party. The team approach should be used, with representatives of the groups involved with local governing bodies and public safety personnel.
A permit should still be issued to the group or groups who will be involved that contains any special conditions applicable to that group. For example, a group may be serving food as a fundraiser, but that group will still be subject to inspection by the health officer for food safety, and will be responsible for compliance with state regulations and liability for meals and rental taxes that may be due. The group, or groups, should provide evidence of necessary liability insurance coverage that names the municipality as an additional insured. The individual groups are responsible for their own risk management activities, including keeping records of their own volunteers, training and supervising the volunteers, and performing any suggested background checks on those persons. Local officials should take care that those persons and activities it will control are well managed in that lists of volunteers are kept, volunteers are trained and supervised, and public safety personnel are clear as to the areas they supervise for safety.
Q. Is our normal municipal insurance coverage adequate for the events we conduct directly, and for these hybrid events we sponsor?
A. Each situation should be evaluated on its own merits, based upon the events involved, how many people will be involved, and the number of other groups which may be involved. The local officials evaluating the event should call their insurance provider to assist in this evaluation, and make suggestions to resolve possible gaps in coverage, and also suggest steps to manage the risk, or transfer it to the persons or entities that are creating the risk.
The New Hampshire Local Government Center (LGC) Property Liability Trust offers a product called a Tenant Users Liability Insurance Policy (TULIP), which can be tailored to individual situations, and thereby provide additional coverage and risk management services for single-day events as well as recurring events. This product may provide an answer to insurance issues in these types of events. For more information on the TULIP Program, visit the LGC website and click on Risk Services > Risk Services Overview > Property & Liability.