Consider the following scenario: a citizen or other third party is walking through your office building, school property, treatment plant facility, etc. and suddenly trips – falling hard to the ground.
A nearby employee sees the fall and immediately attends to the injured person. After a few minutes of discussion and helping the party to his or her feet, the person leaves the premises and the employee goes back to work, not thinking much of the incident.
Six months later, your risk management or human resources department receives a letter from an attorney, noting the injured person (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 organization “preserve all evidence” related to the incident.
With any luck, the employee who saw the incident still works in the organization 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 duty includes inspecting the premises to discover possible dangerous conditions of which the owner does not already have actual knowledge, as well as taking reasonable precautions to protect people on the premises from foreseeable dangers. While there may be additional defenses under Governmental Immunity (requiring evidence of gross negligence), for most premises’ injury claims, the standard for fault is simple negligence.
While a premises owner is not required to warrant the safety of all persons from all things, it does have a duty to exercise ordinary care to make the premises safe. Proactive steps can be taken to not only minimize risk and exposure, 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 your facility, the first step should be to assist the injured person and determine whether they require medical attention.
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. These basic actions should be taken:
- Obtain information about the person involved in the incident (name, employer, phone number and address) and similar information about anyone who witnessed the incident or was present at the scene of the incident thereafter.
- Take photographs of the scene immediately after an incident to help provide 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 an organization defends 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 organizations 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.”
Spoliation arises commonly with respect to video footage. After a time, data files get recorded over, misplaced and deleted. Having a procedure to ensure the preservation of video footage is critical and will avoid claims that the organization improperly destroyed evidence. If there is video footage of the incident or involved persons, it should be saved.
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
Overall, implementing both proactive procedures and response protocols can provide multiple benefits for premises owners where injuries to third parties may occur. The implications of preventative steps and reactionary measures, as they relate to litigation, should be recognized and understood to ensure an incident is evaluated with the best information possible.
The VRSA claim staff are always available to answer any questions about liability claims.