B-202329.OM, APR 21, 1982

B-202329.OM, APR 21, 1982

SUBJECT: GOVERNMENT RESPONSIBILITY TO PROTECT EMPLOYEES AND THEIR PROPERTY IN THE GAO BUILDING - B-202329-O.M. DIGEST: DIRECTOR, OFFICE OF SECURITY AND SAFETY, GAO, ASKED OFFICE OF GENERAL COUNSEL FOR AN OPINION AS TO LIMITS ON GOVERNMENT RESPONSIBILITY FOR SECURITY AND SAFETY OF GAO EMPLOYEES AND THEIR PERSONAL PROPERTY IN THE GAO BUILDING. UNDER FEDERAL EMPLOYEES' COMPENSATION ACT, 5 U.S.C. SEC. 8101, FEDERAL GOVERNMENT HAS ASSUMED ALMOST TOTAL LIABILITY FOR DEATH OR DISABILITY OF AN EMPLOYEE INJURED IN PERFORMANCE OF DUTY. THE GOVERNMENT HAS ASSUMED A LESSER DEGREE OF LIABILITY FOR AN EMPLOYEE'S PERSONAL PROPERTY LOST OR DAMAGED AT THE WORKSITE AND THE LIMITS OF LIABILITY ARE GOVERNED BY THE MILITARY AND CIVILIAN EMPLOYEES' CLAIMS ACT OF 1964, 31 U.S.C. SEC. 240, AS IMPLEMENTED BY GAO ORDER 0267.1.

DIRECTOR, OSS - ARTHUR A. KLEKNER:

YOU ASKED US TO PROVIDE YOU WITH GUIDANCE CONCERNING THE GOVERNMENT'S RESPONSIBILITY FOR SAFETY AND SECURITY OF GAO EMPLOYEES AND THEIR PERSONAL PROPERTY WHILE THEY ARE WORKING IN THE GAO BUILDING. FIRST, WE SHALL DISCUSS THE GOVERNMENT'S OBLIGATION FOR THE SAFETY OF EMPLOYEES AND THEN THE GOVERNMENT'S OBLIGATION TO PROVIDE SECURITY FOR THE PERSONAL PROPERTY OF EMPLOYEES.

EMPLOYEE SECURITY

THE FEDERAL GOVERNMENT HAS ASSUMED ALMOST TOTAL LIABILITY FOR THE DEATH OR DISABILITY OF AN EMPLOYEE RESULTING FROM PERSONAL INJURIES SUSTAINED WHILE IN THE PERFORMANCE OF DUTY UNDER THE PROVISIONS OF THE FEDERAL EMPLOYEES' COMPENSATION ACT 5 U.S.C. SEC. 8101 ET SEQ. UNDER THIS STATUTE EMPLOYEES HAVE THE RIGHT TO COMPENSATION FOR DISABILITY OR DEATH RESULTING FROM THE INJURY AND TO MEDICAL SERVICES, APPLIANCES AND SUPPLIES NECESSARY FOR TREATMENT. IT IS NOT NECESSARY FOR THE EMPLOYEES TO PRESENT PROOF OF FAULT ON THE PART OF THE GOVERNMENT OR ITS EMPLOYEES, HOWEVER, CLAIMS FOR COMPENSATION FOR INJURIES OR DEATH CAUSED BY THE EMPLOYEE'S OWN MISCONDUCT MAY NOT BE ALLOWED UNDER MOST CIRCUMSTANCES. THE TERM INJURY AS CONTEMPLATED BY THE ACT INCLUDES ANY DISEASE PROXIMATELY CAUSED BY THE EMPLOYMENT IN ADDITION TO INJURY INCURRED IN ACTIVITIES ASSOCIATED WITH EMPLOYMENT AS WELL AS INJURIES DIRECTLY CONNECTED WITH IT. CRIMINAL ACTS RESULTING IN INJURY ARE ALSO COVERED. FOR EXAMPLE, A DISTRICT OF COLUMBIA SCHOOL TEACHER'S CLAIM WAS ALLOWED FOR INJURIES SUSTAINED WHERE TWO MALE STRANGERS ENTERED HER CLASSROOM AND ASSAULTED, ROBBED, AND RAPED HER. TREDWAY V. DISTRICT OF COLUMBIA, 403 A.2D 732 (1979) CERT.DEN. 444 U.S. 867 (1979).

WE SHOULD POINT OUT THAT CLAIMS ARE NOT GENERALLY ALLOWED FOR DISABILITY OR DEATH CAUSED BY WILLFUL MISCONDUCT OR INTOXICATION OF THE INJURED EMPLOYEE. SIMILARLY, CLAIMS ARE NOT ALLOWED FOR INJURY OR DEATH CAUSED BY THE EMPLOYEE'S INTENTION TO BRING ABOUT THE INJURY OR DEATH OF HIMSELF OR OF ANOTHER.

ON THE BASIS OF PUBLIC POLICY CONSIDERATIONS, CONGRESS HAS MADE THE FEDERAL GOVERNMENT LIABLE FOR THE COST OF MOST ACCIDENTS THAT ARE SUSTAINED BY FEDERAL EMPLOYEES IN THE COURSE OF THEIR EMPLOYMENT. THE EXTENSIVE LIABILITY, HOWEVER, DOES NOT MEAN THAT ELABORATE AND COSTLY SAFETY AND SECURITY MEASURES ARE REQUIRED TO PRECLUDE EVERY POSSIBILITY OF ACCIDENTS. NEGLIGENCE ON THE PART OF THE GOVERNMENT IS NOT A FACTOR IN CONSIDERING EMPLOYEE CLAIMS FOR COMPENSATION UNDER THE FEDERAL EMPLOYEES' COMPENSATION ACT.

SECURITY OF EMPLOYEES' PERSONAL PROPERTY

THE LIABILITY OF THE GOVERNMENT FOR AN EMPLOYEE'S PERSONAL PROPERTY AT THE WORKSITE IS LESS COMPREHENSIVE THAN FOR THE EMPLOYEE'S PERSONAL SAFETY AND SECURITY. THE PRIMARY REMEDY CONGRESS HAS PROVIDED FOR PERSONAL PROPERTY LOSSES OF FEDERAL CIVILIAN EMPLOYEES INCIDENT TO THEIR SERVICE IS CONTAINED IN THE MILITARY AND CIVILIAN EMPLOYEES' CLAIMS ACT OF 1964 (31 U.S.C. SEC. 240 ET SEQ.). AFTER EXHAUSTING REMEDIES UNDER THE MILITARY AND CIVILIAN EMPLOYEES' CLAIMS ACT, AN EMPLOYEE MAY ALSO HAVE A RIGHT OF ACTION AGAINST THE GOVERNMENT UNDER THE FEDERAL TORT CLAIMS ACT (28 U.S.C. SEC. 1346) FOR LOST OR DAMAGED PERSONAL PROPERTY CAUSED BY NEGLIGENCE ON THE PART OF THE GOVERNMENT. HOWEVER, WE ARE UNAWARE OF ANY JUDICIAL DECISION THAT INDICATES AN EMPLOYEE HAS SUCCESSFULLY BROUGHT SUCH A CAUSE OF ACTION IN THE COURTS. ON THE OTHER HAND, THERE ARE DECISIONS THAT SUGGEST THAT THE MILITARY AND CIVILIAN EMPLOYEES' CLAIMS ACT IS THE EXCLUSIVE REMEDY FOR LOST OR DAMAGED PERSONAL PROPERTY AND THAT THE FEDERAL TORT CLAIMS ACT WOULD NOT BE AVAILABLE AS A REMEDY FOR SUCH SITUATIONS. SEE FIDELITY PHENIX FIRE INSURANCE CO. V. UNITED STATES, 111 F.SUPP. 899 (1953), PREFERRED INSURANCE COMPANY V. UNITED STATES, 222 F.2D 942 (1955).

GAO HAS IMPLEMENTED THE MILITARY AND CIVILIAN EMPLOYEES' CLAIMS ACT BY PROMULGATING GAO ORDER 0267.1 SETTING FORTH THIS AGENCY'S POLICIES REGARDING SETTLEMENT OF CLAIMS UNDER THE STATUTE. THE BENEFITS AVAILABLE UNDER THE STATUTE AND REGULATIONS ARE IN SOME WAYS COMPARABLE TO THOSE RECEIVED UNDER AN INSURANCE POLICY. A CLAIMANT NEED NOT PROVE WRONGDOING OR NEGLIGENCE ON THE PART OF THE GOVERNMENT. ONE NEED ONLY PROVE THAT HIS LOSS IS COVERED UNDER THE TERMS AND CONDITIONS OF THE STATUTE AND IMPLEMENTING REGULATIONS IN ORDER TO BE COMPENSATED. ANTON V. GREYHOUND VAN LINES, INC. 591 F.2D 103 (1978).

A CLAIM MUST BE FOR LOSS OR DAMAGE TO PERSONAL PROPERTY THAT OCCURRED INCIDENT TO HIS GAO SERVICE. THE GAO ORDER ESTABLISHED CERTAIN GENERAL CRITERIA THAT MUST BE SATISFIED BEFORE AN EMPLOYEE'S CLAIM WILL BE ALLOWED. POSSESSION OF THE PERSONAL PROPERTY BY THE EMPLOYEE MUST BE DEEMED REASONABLE, USEFUL OR PROPER UNDER THE CIRCUMSTANCES AND THE LOSS OR DAMAGE MUST HAVE OCCURRED IN CONNECTION WITH OFFICIAL BUSINESS. MOST IMPORTANT, THE CLAIMANT'S NEGLIGENCE OR WRONGFUL ACT MUST NOT HAVE BEEN EVEN A PARTIAL CAUSE OF THE LOSS OR DAMAGE TO THE PERSONAL PROPERTY. FINALLY, NO MORE THAN $15,000 MAY BE PAID ON ANY CLAIM.

THE ABOVE LISTED CONDITIONS WOULD SERVE TO EXCLUDE MANY CLAIMS FOR LOST OR DAMAGED PERSONAL PROPERTY. OBVIOUSLY, IT WOULD BE NEGLIGENCE ON THE PART OF A FEMALE EMPLOYEE TO LEAVE HER PURSE ON THE TOP OF HER DESK WHILE SHE WAS AWAY FROM HER OFFICE. SIMILARLY, EMPLOYEES WHO LEAVE RADIOS, APPLIANCES AND OTHER ITEMS OF VALUE IN THEIR UNOCCUPIED OFFICES ARE PRESUMED TO BE NEGLIGENT IN FAILING TO SECURE THEIR PROPERTY AND IF SUCH ITEMS WOULD DISAPPEAR OR BE DAMAGED, THEIR CLAIMS WOULD NOT BE ALLOWED.

ON THE OTHER HAND, WE HAVE NOT AS YET DECIDED WHETHER CLAIMS FOR OVERCOATS, THAT EMPLOYEES WEAR TO WORK AND HANG ON COAT RACKS PROVIDED IN THEIR OFFICES AND WHICH ARE SUBSEQUENTLY STOLEN, SHOULD BE ALLOWED. HOWEVER, IF WE ASSUME THAT CLAIMS FOR OVERCOATS WOULD BE ALLOWABLE ON THE THEORY THAT EMPLOYEES MUST WEAR OVERCOATS TO THE OFFICE IN COLD WEATHER AND ARE UNABLE TO CARRY THEM AROUND WITH THEM OR LOCK THEM UP, WE DO NOT BELIEVE THIS WOULD PLACE AN INTOLERABLE BURDEN ON THE GOVERNMENT TO ASSUME LIABILITY FOR STOLEN OVERCOATS. THE COST OF SUCH STOLEN OVERCOATS CLAIMS WOULD BE RELATIVELY SMALL ON AN ANNUAL BASIS.

ALSO, WE BELIEVE THAT UNDER THE STATUTE AND THE GAO ORDER, THE GOVERNMENT SHOULD BE LIABLE FOR CLAIMS INVOLVING DAMAGE TO AN EMPLOYEE'S CLOTHING THAT OCCURS AS A RESULT OF EITHER NEGLIGENCE ON THE PART OF THE GOVERNMENT OR ITS AGENTS OR UNUSUAL OCCURRENCES. FOR EXAMPLE, A CONCEALED DEFECT IN THE FORM OF A FAULTY BATTERY ON A FORK LIFT COULD SPRAY ACID ON THE OPERATOR'S TROUSERS WHILE HE IS OPERATING THAT DEVICE AND RUIN THAT ITEM OF CLOTHING. THE GOVERNMENT WOULD ASSUME LIABILITY FOR HIS LOSS BECAUSE OF A DEFECT THAT THE EMPLOYEE COULD NOT DISCOVER AND FOR WHICH THE GOVERNMENT WAS NEGLIGENT. ANOTHER SITUATION COULD INVOLVE A CASE WHERE AN EMPLOYEE DAMAGES HIS CLOTHING WHILE EXTINGUISHING A FIRE ON THE GAO BUILDING. THE GOVERNMENT WOULD ASSUME LIABILITY FOR PAYMENT OF THIS CLAIM ON THE BASIS THAT THE EVENT CONSTITUTED AN UNUSUAL OCCURRENCE.

UNDER THE FEDERAL TORTS CLAIMS ACT, ASSUMING AN EMPLOYEE COULD SUCCESSFULLY BRING SUCH ACTION, THE GOVERNMENT MAY BE LIABLE FOR DAMAGE OR LOSS OF PERSONAL PROPERTY CAUSED BY THE BY THE NEGLIGENT OR WRONGFUL ACT OR OMISSION OF ANY GOVERNMENT EMPLOYEE WHILE ACTING WITHIN THE SCOPE OF HIS OFFICE OR EMPLOYMENT UNDER CIRCUMSTANCES WHERE THE GOVERNMENT, IF A PRIVATE PERSON, WOULD BE LIABLE TO THE CLAIMANT IN ACCORDANCE WITH THE LAW OF THE PLACE WHERE THE ACT OR OMISSION OCCURRED. IN ANY EVENT, NON- GOVERNMENT EMPLOYEES VISITING THE GAO BUILDING WOULD NOT BE BARRED FROM BRINGING AN ACTION IN APPROPRIATE CASES UNDER THIS ACT.

CONCLUSIONS

IN VIEW OF THE POTENTIAL RISKS TO WHICH THE GOVERNMENT IS EXPOSED, YOUR OFFICE SHOULD TAKE REASONABLE MEASURES TO PROVIDE FOR THE SECURITY AND SAFETY OF NON-GOVERNMENT EMPLOYEE VISITORS, GAO EMPLOYEES AND THEIR PERSONAL PROPERTY WHILE THESE PERSONS ARE ON THE PREMISES OF THE GAO BUILDING. YOU SHOULD ATTEMPT TO DISCOVER HAZARDS TO THESE PERSONS AND THEIR PROPERTY AND ELIMINATE, NEUTRALIZE OR REDUCE THEM TO THE EXTENT FEASIBLE. WHERE CONCEALED HAZARDS ARE DISCOVERED WHICH CANNOT BE IMMEDIATELY ELIMINATED, YOU SHOULD TAKE ACTION TO WARN EMPLOYEES AND VISITORS OF THEIR EXISTENCE SO AS TO REDUCE THE RISK OF BODILY INJURY OR DAMAGE TO PROPERTY. ALSO, YOU SHOULD INSURE THAT GAO EMPLOYEES AND CONTRACTORS TAKE REASONABLE PRECAUTIONS IN CARRYING ON ACTIVITIES WHICH MIGHT INJURE EMPLOYEES OR VISITORS OR DAMAGE THEIR PROPERTY. ON THE OTHER HAND, WE DO NOT BELIEVE YOU ARE OBLIGATED UNDER LAW AND REGULATIONS TO TAKE ELABORATE AND EXPENSIVE PRECAUTIONARY MEASURES TO REDUCE BODILY INJURY AND PROPERTY LOSS OR DAMAGE MUCH BELOW CURRENT LEVELS. LIKE OTHER AGENCIES OF THE FEDERAL GOVERNMENT, GAO AS A MATTER OF POLICY SELF INSURES THE RISKS IT ASSUMES. IN THIS REGARD, GAO WILL BE LIABLE FOR PAYMENT OF A CERTAIN NUMBER OF CLAIMS EACH YEAR. ACCORDINGLY, NEW SECURITY MEASURES TO REDUCE SUCH CLAIMS SHOULD BE INSTITUTED ONLY WHEN JUSTIFIED ON A COST/BENEFIT BASIS. IN CERTAIN CASES YOU MAY PROPERLY DECIDE THAT THE COST OR OTHER BURDENS ASSOCIATED WITH THE INTRODUCTION OF A PROPOSED SAFETY OR SECURITY MEASURE IS NOT JUSTIFIED AND THAT THE GOVERNMENT SHOULD ASSUME THE RISK OF PAYMENT OF CLAIMS THAT MAY RESULT FROM THE ABSENCE OF SUCH MEASURE.

FINALLY, WITH REGARD TO EMPLOYEE CLAIMS FOR PERSONAL PROPERTY, THE OFFICE OF BUDGET AND FINANCIAL MANAGEMENT IS THE SPONSOR OF GAO ORDER 0267.1 AND HAS AUTHORITY TO PERIODICALLY AMEND THE ORDER AS DEEMED NECESSARY AND APPROPRIATE TO CHANGE THE TERMS AND CONDITIONS UNDER WHICH SUCH CLAIMS ARE ALLOWED. YOU MAY WISH TO MAKE RECOMMENDATIONS TO THAT OFFICE FROM A SECURITY VIEWPOINT CONCERNING THE LIABILITY THAT GAO SHOULD AND SHOULD NOT ASSUME FOR THE SECURITY OF ITS EMPLOYEES' PERSONAL PROPERTY.