Someone claims to have been injured on your property. What do you do? Panic? No, that won’t help. Envision that you will go to the poorhouse because of an unfair legal system? That won’t help either. Besides, for the most part, our legal system really is pretty fair. So what should you do?
Obviously, whenever an accident occurs at your site, your first priority is ensuring anyone injured gets the assistance he needs. But after health and safety issues are addressed, get and document the facts. In other words, perform an investigation, the sooner the better. Large companies typically have a risk-management department that provides pre-printed “Incident Report” forms. Smaller companies can, and should, accomplish the same thing with a forward-thinking manager and a blank sheet of paper.
As soon as possible, report the incident to your insurance company. Although your carrier may want to perform its own investigation, the first question you will be asked is, “What happened?” You’ll also need to know who was involved, when, where, how and how badly they were injured. It may be that neither you nor any of your employees were onsite when the alleged accident happened. Therefore, the investigation may be done by telephone when the accident is first reported.
Hopefully, you will never have to deal with onsite injuries. The old saying “An ounce of prevention is worth a pound of cure” is a good start, but not always sufficient advice. And accidents do happen, often in ways that we couldn’t possibly have imagined.
Get the Facts
Getting all pertinent facts is important, but what may be less obvious is the necessity of thoroughly documenting the information obtained. Yes, it can be time-consuming to write down everyone’s name, address, e-mail address, home phone number, cell phone number, what they observed and their relationship to the injured person, along with the date, day of the week, time, weather conditions and even what parts of the body were injured.
You may wonder if detailed documentation is really all that necessary; after all, you have a good memory. The world will not stop spinning if you don’t do it, but a small effort now can save a lot of time, effort, aggravation and money in the future for you, your insurance company and lawyer.
Some claims get resolved (denied or paid) quickly, often within a couple of months. However, the contentious ones can go on for years, and may involve litigation. During this extended time period, employees, insurance adjusters and lawyers can come and go. Therefore, the better the initial investigation and documentation, the more likely it is that the claim can be properly valued and defended, if necessary, even two or three years after the accident.
It’s never a bad idea to have a camera onsite (whether it be surveillance or a cell phone) to provide photographic documentation of accidents. In a slip-and-fall case, a photo of the injured person’s shoes could be helpful. Likewise, a picture of floor signs warning of a wet floor near where the person fell can be useful. The point of taking photographs is not merely to document fault-finding, but rather to help someone who was not present understand what happened.
You do not need to provide photographic documentation of someone’s pain or injuries. Their medical records will be sufficient. Likewise, no gory or demeaning photos should be taken.
Don’t Lay Blame
Premises liability laws vary on a state-by-state basis and can be confusing. By way of example, a facility owner’s duty to an injured person can depend on whether he is classified as a trespasser, licensee or invitee. Similarly, whether a condition of the premises results in liability may depend on whether that condition is determined to be “unreasonably dangerous” (as opposed to merely dangerous) or “open and obvious.”
Business owners and managers do not need to concern themselves with these legal distinctions during the initial investigation. Claims adjusters and lawyers can sort through these issues after the fact. In other words, the initial investigation should not be about winning and losing, but rather about documenting the facts. To borrow a phrase from Sergeant Joe Friday from the TV show Dragnet, “Just the facts, ma’am.” It is not appropriate during the initial investigation to get into a debate as to who is to blame or is responsible.
Likewise, you should not rush to judgment against yourself or your premises. Remember, the purpose of the initial investigation is to get and document information, not assess, assign or accept blame.
As a final cautionary note, be very careful about what you say. What does “I’m sorry” mean? Sometimes juries have to determine whether that is an acknowledgement of fault or a natural expression of sympathy. Likewise, what does it mean to say, “Here’s my insurance information, which will take care of it”? Is that an admission of fault? Is this the same as saying, “They will pay you whatever you want”?
After being informed of an onsite injury, the first priority is the health and safety of anyone involved. After that, investigate and document what happened. Time and effort spent initially can save much more time, effort and aggravation later in the process of resolving a claim. Finally, let the insurance adjusters and lawyers suffer through the legal analysis. After all, that is what they are trained and paid to do.
Joshua T. Kutchin and Rocky Little are directors with Fanning, Harper & Martinson P.C. in Dallas. Both ar board certified in personal-injury trial law by the Texas Board of Legal Specialization, and practice primarily in the areas of personal-injury negligence, product-liability litigation, and premises liability litigation, with significant experience in self-storage issues. For more information, call 214.369.1300; e-mail [email protected].