New Podcast: Keep Calm & Investigate

An effective and thorough investigation is the first line of defense in any premises liability case. Learn more from Collins & Lacy attorney, Amy Neuschafer as she talks with Michael Burney in this episode of The Legal Bench.

Michael Burney: An effective and thorough investigation is the first line in defense of any premise liability case, says Amy Neuschafer, Managing Shareholder of the Collins and Lacy Myrtle Beach office.  Amy practices in the areas of retail and hospitality law, appellate advocacy, premises liability, and professional liability, and she’s here with us now.  So, Amy, tell us more about how to keep calm and investigate. 

Amy Neuschafer: Well, let’s face it, accidents are going to happen if you have a business open to the public, so it’s important to know how to react and gather the necessary information in the event a claim is made against your business.  I’ve got some tips I want to give everybody today for when a guest reports an accident.  We want to be able to gather as much information as possible.  Employees move on, memories fade, but you can document your file and it may help push your claim towards favorable resolution in the end.

The first tip that I have today is to develop a concise accident report.  This is going to take some effort on the part of upper management of any business.  After an accident there is usually limited time to speak with a guest and emotions may be running high, so you want to have a concise accident report that you can turn to under those circumstances.  The accident report should be tailored to suit your specific business’s needs and the nature of your business, but at a minimum you’re probably going to want to include the guest’s basic contact information, a place to include a narrative description of the accident, the guest’s alleged injuries, and of course witness contact information.  For a slip and fall trip and fall accidents it’s also a good idea to note the weather conditions, what type of footwear the guest was wearing, if the guest was carrying anything, whether there is the presence of floor mats, or anything else that may be important to the observations of the scene.  And please be sure to write down any statements against interests that the guest may make.  You would be surprised how many times someone may say I wasn’t looking where I was going, or I tripped over my own two feet.  You want to document those things as soon as possible.

When you complete the incident report it’s important to do so from the guest’s perspective.  So, note on the accident report that the description of how the accident occurred or what caused the accident is phrased from the perspective of the guest.  As an example, instead of saying guest slipped on an old banana peel, maybe try to phrase it in a way like guest states she slipped on a banana peel that she thought looked old.  Otherwise, you may be in a position where your phrasing of the guest’s statements could be later misconstrued as an admission or a statement of fact on the part of the business rather than the guest.  You also want to make sure you fully complete the incident report.  A half completed incident report can be just as bad as not doing one at all sometimes.  If the report calls for specific information, there’s blanks on the form to include specific information, either include it or state that it is not applicable or that the guest did not provide or refused to provide it.  If you leave empty blanks on an accident report, you leave an opening for counsel later to misconstrue it as a sloppy or cursory investigation.  I also suggest that you complete an accident report even if the guest declines to do one.  Sometimes a guest reports an accident or just off-hand mentions they’ve been in an accident, but they don’t want to provide the information needed to complete a report.  Or, sometimes to an employee an accident may appear so minor that they think no report is needed.  The management should stress that neither of these scenarios are going to prevent a guest from bringing a suit years later.  So always complete a report.  If a guest refuses to provide the information, include as much information as possible and indicate on the form that the guest declined or refused, but you can at minimum put the date a physical description of the guest.  If you see the guest get in their car and leave, maybe you can write down the make, model, and color of the vehicle.

MB: OK, Amy, so what about photographs and video.  Are those important and why?

AN: Photographs and video are absolutely important.  You want to remember to photograph the area of the accident, but don’t take photographs of the injured guest or customer.  If a spill or other hazardous condition is involved, please be sure to include photographs of that alleged or potential hazard as well as any warning signs that may have been present at the time of the accident.  Years later when you may get into formal litigation, furniture and fixtures at a business could be moved, the property may be remodeled by the time that rolls around, so you want to make sure you also take a photograph of kind of setting the scene of the general area where the accident occurred from a distance.  My kind of rule of thumb us when you think you’re done taking photographs, step back and take one more.  And, don’t simply save the photographs on a hard drive; save them on a disk, multiple disks if you need to, and put the complete disk with your accident report in a file somewhere safe.  

We also run into with retail and hospitality clients all the time the issue of preserving video surveillance.  Nowadays, I think most guests and customers expect that there is going to be video of an accident.  And, if that is the case, you need to make sure that you preserve that footage, not only of the accident itself but any other relevant footage.  This is always going to be a judgment call on the part of the business, but for slip and fall accidents, review the footage prior to the accident and save if you can starting when the spill occurred if it can be identified, and then you’re also going to want to also preserve post-accident footage throughout the time the guest exits the premises.  That way you can see how they’re moving about if they do have any obvious injuries.  Most digital video recorders that we see nowadays purge their recordings after a set time period, so this is something you’re going to want to do right away.  Take steps to remove it from the recorder, transfer it to a disk or other hard drive outside source, and make multiple copies of it.  Always keep at least one copy in your accident file.

MB: Is there other evidence that will be important to collect?

AN: I think it’s good also if you can collect the date of the incident the employee schedules for that day.  Unfortunately, a lot of times turnover is high in the retail restaurant hospitality industries, especially in a location where I am like Myrtle Beach where so much of that business is seasonal.  As a result, you’re going to want to attach a copy of the employee’s schedule to be able to identify potential witnesses down the road.  It’s also important if the guest made purchases to keep a receipt especially in cases involving alcohol.  You’re going to want to preserve an itemized copy of the guest’s receipt showing all food and beverages purchased and if possible, to keep a copy of the receipts of other members of the guest’s party.  I think all of these steps are important but perhaps the most important thing to do is to thoroughly train your employees on accidents and reporting an investigation.  When an accident is reported, a member of management should respond.  I think guests probably expect that.  And that member of management should gather the necessary information an oversee the completion of the accident report and the investigation itself.  So, all employees should be training in accident response procedures and management should have additional training in an investigation.  You’re going to want to periodically do refresher courses for employees.

My last tip for today is to follow-up with the customer after the accident.  Over the years I have lost count of how many times I have heard a customer or their attorney tell me once we’re in full throws of litigation that the customer never would have pursued the claim if they had simply been contacted by the business after the accident.  I think in most cases a follow-up call is probably not going to dis-sway a customer from pursuing a claim, but a little kindness can go a long way to humanizing your business if the claim does end up in suit.  And, at the end of the day, it’s just good customer service.  I would suggest that you assign a well-spoken, well-trained member of management or risk management, if your business has it, to make that follow-up call, and you’re going to want to keep the call brief to the point ask basic questions about how the customer’s doing but don’t discuss the investigation or make any admissions.  Take notes during the call and again retain those in your accident file in case litigation does ensue.              All my tips today have been aimed at helping businesses deal with the tense aftermath of a guest accident and we all know it is challenging to gather information in the heat of the moment, but hopefully if you follow these tips you’ll collect the information necessary to effectively investigate a premises liability accident.  So please implement these tips where possible so you can keep calm and investigate.

Listen to the episode here on The Legal Bench!