Consider the following scenario: A contractor is walking through your facility and suddenly trips, falling hard to the ground. A nearby employee sees the fall and immediately attends to the contractor. After a few minutes of discussion and helping the contractor to his feet, the contractor leaves the premises and the employee goes back to work, not thinking much of the incident.
Six months later, your facility manager receives a letter from an attorney, noting the contractor (whose name was never taken down) was injured in the fall and has been incurring medical bills ever since. The letter also demands that your facility “preserve all evidence” related to the incident. With any luck, the employee who saw the incident still works at your facility and recalls what happened. More likely, however, details of the incident are unclear—the employee does not remember where it happened, why it happened, or whether anyone else witnessed it. This situation is one that plays out all too often, and it puts facilities in an unfavorable position when dealing with on-site injuries.
Exposure and risk for a facility arise out of a property owner’s duty to exercise ordinary care to protect persons from unreasonable risks of harm of which the owner has superior knowledge. This duty also applies to occupiers of property and includes inspecting the premises to discover possible dangerous conditions of which the owner or occupier does not already have actual knowledge, as well as taking reasonable precautions to protect people on the premises from foreseeable dangers.
A premises owner or occupier is not required to warrant the safety of all persons from all things, however, but to exercise ordinary care to make the premises safe. As applied to the everyday operation of a facility, store, plant or other premises, proactive steps can be taken to not only minimize risk and exposure to a company, but also to promote safety and prevent injuries from happening in the first place.
Investigating the Incident
Establishing a protocol for responding to an accident can be instrumental in assessing a given situation, monitoring facility safety risks, anticipating litigation and identifying hazards to minimize future incidents. As time passes, there is an increased probability of challenges like turnover of employees with knowledge of the incident, difficulty in locating witnesses, loss of clear details, deletion of emails, and misplacement of videos and photographs. Therefore, it is critical to take steps immediately following an incident to evaluate how and why it occurred.
When someone is injured at a company facility, the first step should be to assist the injured person and determine whether they require medical attention. Offer to arrange medical assistance either on-site (if the facility has first aid capabilities) or by calling an ambulance.
Next, initiate an investigation to determine the facts of the incident. Having a standardized report that is to be completed by a supervising employee will help organize the information and memorialize details of the incident. Basic information should be obtained and recorded and the following actions taken:
- Obtain information about the person involved in the incident (name, employer, phone number and address) and information about anyone who witnessed the incident or was present at the scene of the incident thereafter (names, phone numbers and addresses).
- Take photographs of the scene immediately after an incident to help provide the context for the accident and how it happened.
- Ask the person involved to write out a statement about the incident, including how it happened, what caused it, and what injuries were sustained.
- Have the supervisor and any witnesses also write out a statement about details of the incident and the person involved.
- If your facility uses cameras, establish a procedure for checking the cameras to determine whether the incident or the people involved were recorded. Any video of the accident could help provide invaluable information.
Preserving the Evidence
The implementation of investigative practices may affect how a company defends workplace injury claims, personal injury claims and lawsuits. Indeed, investigative practices following an incident may trigger procedures to preserve documentary evidence and information. Specifically, “spoliation of evidence” is a critical issue for companies that implement the practices described above. “Spoliation” refers to the destruction, failure to preserve, or material alteration of evidence that is relevant to “contemplated or pending litigation.” Proof of spoliation raises a rebuttal presumption against the spoliator (the company) that the evidence favored their opponent (the claimant/plaintiff). To trigger this inference, however, the spoliating party must have knowledge of contemplated or pending litigation at the time of destruction.
Spoliation arises commonly with respect to video footage. After a time, data files get recorded over, misplaced and deleted. Similarly, discs containing the footage can also be misplaced or damaged. Having a procedure to ensure the preservation of video footage is critical and will avoid claims that the company improperly destroyed evidence. If there is video footage of the incident or involved persons, it should be saved.
Courts have addressed the preservation of evidence following an incident. For instance, the Georgia Court of Appeals concluded that a grocery store spoliated evidence material to litigation when the store failed to preserve surveillance footage that may have captured the plaintiff’s slip and fall. There, the Georgia Court of Appeals affirmed a trial court’s decision to render liability against the store because it spoliated evidence and acted in bad faith.
Thus, the prudent course of action is to preserve all evidence regarding an incident where someone is injured, including photographs and videos. A more conservative approach is to preserve all information about an accident, whether or not an injury is reported immediately.
Learn from the Incident
Companies should also evaluate accidents to determine better practices, identify risks for future incidents, and train employees on how to address accident scenarios. Any reactive measures can be taken without fear that doing so will demonstrate culpability for a prior incident. In Georgia, for example, remedial measures taken to make an injury or harm less likely to recur are not admissible to prove negligence or culpable conduct in civil litigation.
If your company has post-accident procedures, it is helpful to review those protocols. Companies often have procedures for handling accidents, but those practices can be forgotten or overlooked during the chaos of an incident. Periodically reviewing post-accident procedures with your employees can help ensure the use of these procedures.
Overall, implementing both proactive procedures and response protocols can provide multiple benefits for companies operating stores and other premises where injuries to patrons, contractors and employees may occur. Most importantly, they can help increase safety and meet the ongoing challenge of reducing costs, particularly those related to accidents and litigation. The implications of preventative steps and reactionary measures, as they relate to litigation, should not be overlooked. Rather, they need to be recognized and understood to ensure an incident is evaluated with the best information possible.