June 2018

by Stephen Moore, Galloway Johnson Tompkins Burr & Smith

Accidents happen. No matter how thoroughly your workplace is invested in a culture of safety, sooner or later, if you are doing enough business, accidents will happen. How those accidents impact your business, your employees and your customers, however, is something you can manage in a number of ways. From my perspective as a defense litigator, how that accident is managed on Day 1 can reverberate throughout the life of any claim or lawsuit that results. In fact, how the accident is managed on Day 1 can often matter far more than anything your lawyer does for you, because lawyers are only as good as the tools they have to work with. So, think of your accident investigation as a mission to collect as many tools as possible, so that your attorney can do the best job possible for you. Following are some items you might think of as a defense attorney’s wish list.

Before any accident happens, designate a work-place accident investigator. On any job site, have one (or more depending on the size of the job) person designated as your accident investigator—the person in charge of the investigation in the unfortunate event of an accident. That person can be trained in your accident investigation procedures, have the proper forms and other equipment close at hand and, most importantly, be accountable for completing the investigation. If no one is in charge, you can be assured of an ineffective and incomplete investigation. And, while it is of course important to do a good job, it is also important to remember that perception is sometimes as important as reality. If your accident investigation looks disorganized, incomplete and careless, your company will look that way to a jury, to a workers’ compensation judge or to the plaintiff’s attorney. An organized and efficient approach to accident investigation will create the opposite impression, which in some cases can stop a lawsuit before it ever becomes one.

Have an effective accident report form. Make sure you have in place a standardized, pre-printed accident report form. If you don’t have one, your attorney or insurance agent can assist you in developing a form that is appropriate for your business. While there is no one-size-fits-all form, a good accident report should do the following:

• Identify the injured party or parties, including name, address, phone numbers and employer.
• Identify witnesses to the accident, including the same information. For witnesses, it is particularly important to get as much identifying information as possible, because phone numbers change and witnesses move away. Locating them months or even years after the accident is easier if you have collected a trail of identifying information.
• Describe the incident in as much detail as possible. This should be done in the form of written statements from the injured party (to the extent possible, given the injury) and each of the identified witnesses. The accident investigator should also write a statement including his or her observations and information gathered from the witnesses. Include in the statement a description of the mechanism of the injury with as much detail as possible. What was the injured worker doing? Who instructed him or her to do it? What tools was he or she using? Be specific. If the worker fell from a ladder, what rung was he or she standing on? What was he or she doing? Did he or she have anything in his or her hand? Note the shoes the injured work was wearing and any protective gear. Was fall protection in place? Be a detective. Is there anything slippery on the floor? Any smell of alcohol or evidence of horseplay before the incident? Consider including a sketch of the accident scene. Note other trades working in the area. Note the weather, time of day and any other factor that may have played a role in the accident.
• Document the injured party’s complaints of injury. What hurts? Is there any blood? Did you observe any loss of consciousness? Any torn clothing or broken safety equipment? Remember, even minor injuries can become more serious with time, so document everything.
• Document any violation of your company’s safety rules or any of the rules in force at the job site.
• In the event first responders were called to the scene, make note of the jurisdiction of each so that their records will be easier to locate.

Interview each witness properly. If possible, every witness should be interviewed separately and in private, so that the witness feels comfortable giving an honest account of his or her perceptions, free from peer pressure or the natural reluctance to judge or criticize a co-worker or supervisor. Reduce the interview to writing and have the witness sign the document. Read the statement back to the witness and attempt to obtain his or her agreement that what has been written is the witness’s accurate re-telling. If the witness refuses to sign, note that as well, but give him or her an opportunity to make corrections, and have him or her initial any that are made. Some savvy investigators make a practice of intentionally making a few inconsequential errors that the witness can correct and initial, just to demonstrate that the witness actually read the statement and gave input, lending further credibility to the statement.

Take pictures. Everyone has a phone. Use it to document the accident with photos and video. More is better. Photograph the entire scene. Photograph the tools, safety equipment, warning signs, and (if it would not cause undue distress) the injured party and the witnesses. Give those photos to your employer or insurance carrier. Do not post them to Facebook or Instagram, and do not delete them.

Preserve the Evidence. It is crucially important that you preserve the evidence associated with any significant accident until you are told you can release it, usually by your attorney or an insurance investigator. If a tool is involved, secure the tool. If a safety device has failed, save it. Secure the injured worker’s hard hat, safety glasses and gloves. Do so, even if they show no sign of damage or injury. Imagine, for example, that a subcontractor’s employee claims to have been struck on the head with a falling tool, but the hard hat shows no damage. The absence of any scuff marks is surely relevant. A picture is worth a thousand words. The actual hard hat is worth even more. Note also that in the event of a serious accident, it may be necessary to shut down the job site, or at least a portion of it, until the scene can be documented fully. That could take days, weeks or even months, but the consequences of failing to preserve evidence may be quite serious. Remember, also, that the statute of limitation for lawsuits varies from state to state, from as little as one year to as many as five. So, be sure you are in the clear before you delete any files or dispose of any artifacts.

Don’t spoil the evidence. The laws regarding spoliation of evidence vary from state to state, but most states impose some duty to preserve evidence that the party holding the evidence ought to know might be relevant in a later lawsuit. For instance, if an employee falls from a lift with a defective safety gate, the law may impose a duty on the possessor of that lift to keep it and to delay any repairs or alterations until its condition can be documented, usually by attorneys, experts and investigators. Failure to do so could subject the “spoiler” to civil liability or, at the very least, a presumption in any legal proceeding that the evidence would have been bad for the spoiler if it had been preserved. Photos and video should never be deleted no matter how unrevealing they may appear to be. And when it comes to video, remember that many recording devices automatically delete after 30 days or even less. It takes little time or effort to download video and save it, so take a moment to do that. In fact, be sure to save any video recording for the entire day of the incident, not just the few seconds that capture the actual event. What was happening in the minutes or hours before the event is often far more important than the event itself.

Lost evidence is the most important evidence. Here is a certainty in litigation: once any piece of evidence is destroyed, deleted or lost, no matter how insignificant or inconsequential that evidence actually was, it will take on mythical proportions in the eyes of an injured worker’s attorney—the one piece of evidence that would have unlocked the entire case and justified a jury award of millions, if it had only been preserved, or so the argument will go. Err on the side of caution, and keep everything.

Document the chain of custody. For all evidence, photos and video secured during the course of an accident investigation, it is important that it is kept in a secure place, out of the weather and safe from any possibility it could be inadvertently disposed of by unknowing personnel or mixed in and confused with other similar looking items. Create a chain of custody form that simply documents who collected the evidence and every time it is moved or touched by others. Coffee cans, plastic tubs and Ziploc bags work wonders for keeping the integrity of evidence intact. Having confidence that the safety glasses you have now were the same safety glasses the employee was wearing three years ago may determine whether those glasses are admissible evidence at trial or excluded to the detriment of your case.

Report the accident to the right people. Every accident, injury or significant property damage should be reported. In the case of an injured employee or worker, the first call may be 9-1-1. Obviously the safety and well-being of any worker is the most important priority. But you should also consider involving your insurance agent to report an incident to allow your insurer an opportunity to investigate. Failure to do so on a timely basis could compromise your defense of any claim and could even jeopardize your coverage. Attorneys and insurers have the tools, resources and experience to secure an accident scene and make sure the evidence is collected properly.

Time marches on, so we must move fast. Memories fade, projects get completed and people change jobs and move away. Memories have a way of changing over time in response to further experiences, conversations with others or the conflation of two or more events in our heads. Witnesses will never remember anything as well as they do today, so it is important that your investigation is undertaken without delay. Witnesses should be interviewed at the scene, if possible, and your own accident report should be prepared the same day. Photos taken days or months after the accident are simply less reliable than photos take on the day of the event. Put simply, time is always of the essence when it comes to investigating a job-site accident.

Reach out to your attorney or insurance agent if you need assistance with an accident investigation or with planning for your response to one. As with any construction project, the right tools make all the difference, and a thorough accident investigation is the means by which you create the best tools for the job. The people you pay to protect you in the event of an accident will be happy to help ensure that you get the right tools in your tool box.

Stephen Moore is the director of Galloway Johnson Tompkins Burr & Smith’s office in St. Louis, Mo. For over 20 years, Moore has practiced in state and federal courts representing businesses, professionals and insurers in property and casualty litigation, including commercial auto, professional malpractice, construction defect, fraud, coverage, first party property litigation and workers’ compensation. He can be reached at (314) 725-0525 or SMoore@gallowaylawfirm.com.

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