Originally published in XPress: International Society of Primerus Law Firms Corporate Client e-Newsletter
An effective and thorough investigation is the first line of defense in any premises liability case. When a guest reports an accident, it is important to gather as much information as possible. Employees move on and memories fade, but a well-documented accident file may just help push a claim toward a favorable resolution. Applying these suggestions immediately after an accident can help businesses get their defense strategy in fighting shape.
• Develop a concise accident report. There is often limited time to speak with a guest after an accident and emotions may be high. Because of this environment, it is important to develop a concise accident report. The accident report should be tailored to suit the nature of your business, but at minimum should include the guest’s basic contact information, a narrative description of the accident and the guest’s alleged injuries, and witness contact information. For slip/trip and fall accidents, it is also a good idea to note the weather conditions, what type of footwear the guest was wearing, and if the guest was carrying anything. Be sure to write down any admissions the guest makes, such as “I wasn’t looking where I was going” or “I tripped over my own feet.”
• Complete the accident report from the guest’s perspective. Note on the accident report that the description of how the accident occurred or what caused the accident should be phrased from the perspective of the guest. For example, instead of “guest slipped on old banana peel,” say “guest states she slipped on a banana peel that she thinks is old.” The difference in these statements may appear to be purely semantics, but couching the description in terms of what the guest reported may prevent it from being misconstrued as an admission or statement of fact.
• Fully complete the accident report. A half-completed accident report can be as bad as not completing one at all. If the report calls for specific information, be sure to include it or state it is not applicable. Leaving empty blanks on an incident report can be misconstrued as a sloppy or cursory investigation.
• Complete an accident report even if the guest declines. At times, a guest will report an accident but decline to provide the information needed to complete a report, or the accident may appear to be so minor that no report is needed. However, neither of these scenarios will prevent a guest from bringing suit years later, so always be sure to complete a report. If the guest refuses to provide the necessary information, include as much information as possible such as the date and a physical description of the guest. Also note on the report that the guest declined to provide the requested information.
• Take photographs. Remember to photograph the area of the accident, but do not take photographs of the injured guest. If a spill or other alleged hazardous condition is involved, be sure to include photographs of the hazard as well as any warning signs present at the time of the accident. Also, furniture and fixtures may be moved, or the property may be remodeled by the time an accident results in a formal claim or suit. As a result, it is important to step back and take a photograph of the general area where the accident occurred from a distance. Finally, don’t simply save the photographs on a hard drive. Save them on a disk, and include the disk in your accident file.
• Preserve video surveillance footage immediately. In this digital age, most guests and certainly their lawyers expect restaurants, hotels and retail establishments to have surveillance cameras. After an accident is reported, immediately take steps to preserve not only all available footage of the accident itself, but all other relevant footage. Determining what is relevant requires a judgment call and depends on the nature of the incident. For slip and fall accidents, review the footage prior to the accident and save starting at the spill if it can be identified. Preserve all post-accident footage through the guest’s exit from the premises. Most digital video recorders purge their recordings after a set time period. Therefore, be sure to immediately transfer the relevant footage to a disk, and make multiple copies of that disk. Always keep at least one copy of the footage in your accident file.
• Include the day’s employee schedule. Employee turnover is high in the retail, restaurant and hospitality industries, particularly since so much business in these industries is seasonal. As a result, attaching a copy of the employee schedule for the date of accident to each accident report may help identify potential witnesses down the road.
• Keep a copy of the guest’s receipt. In cases involving alcohol, it is important to preserve an itemized copy of the guest’s receipt showing all food and beverage purchases. If possible, also keep a copy of the receipts of others in the guest’s party.
• Train employees on accident reporting and investigation. When an accident is reported, a member of management should respond, gather the necessary information, and oversee the completion of the accident report and investigation. All employees need to be trained in accident response procedures and receive periodic refresher training as well. Management should be provided with additional training in accident reporting and investigation.
• Follow up with the customer after the accident. I have lost count of how many times a customer or their attorney has told me the customer never would have pursued the claim if he had simply been contacted after the accident. Although in most cases a follow-up call is probably not going to dissuade a customer from pursuing a claim, a little kindness can go a long way to humanizing your business if the claim ends up in suit. Plus, it’s just good customer service. Be sure to assign a well-spoken, well-trained member of management or risk management to make the follow-up call. Keep the call brief—ask how the customer is doing, but do not discuss the investigation or make any admissions. Take notes during the call and retain them in the accident file.
Accidents happen, and guests and patrons can get hurt. When they do, the often tense aftermath of a guest accident can make it challenging to gather the information necessary to effectively investigate a premises liability claim. Nevertheless, this should not hinder the completion of an effective investigation, and implementing these practical tips may ultimately assist with resolution of the case.