Three Mistakes Businesses Make After a Slip-and-Fall Incident

Perhaps your business has internal protocols that everyone is to follow when it comes to a slip and fall accident. Are these protocols really being followed or are they more like guidelines? Do you have multiple locations for your business? If you have multiple locations for your business, does each have its “own” protocols for slip and fall accidents? Do all of your employees know what to do in the immediate aftermath of an incident, or just certain employees? Perhaps your business has “guidelines,” and they differ from location to location. If that is the case, why?

You have the training or your employees have the training you believe is necessary for when incidents occur at your place of business, but sometimes there are situations that simply do not line up with written protocols or training. Things that seemed practical in writing sometimes cannot be applied to the real world.

Every slip-and-fall accident is unique.. Your manager or employee may rush to help someone and immediately begin investigating the situation while their adrenaline is pumping, so a few steps may be forgotten. Your employee(s) may be dealing with a difficult potential plaintiff or a situation they never prepared for. In any event, most often, things do not go according to plan. Mistakes can occur and protocols may not be followed, because the reality of the situation calls for skipping steps, or there might be some emergent need.

Whatever the case may be, you must be vigilant about fact and evidence gathering for incidents at your business. By the time a defense counsel receives a new case with the claims file and documents from a business regarding a new lawsuit, it could be two years after the incident happened. Internal investigations by the claims adjuster and the business have already taken place. The three main issues that we see or three common mistakes that businesses make after a slip-and-fall incident have to do with delayed documentation, a failure to preserve evidence, and incomplete witness collection. These three main issues have tremendous impact on the availability of defenses for your business in a lawsuit.

Incomplete Witness Collection

When someone is notified of an incident at a place of business, the natural first question anyone has is what happened? An employee who witnessed the incident may report it to their superior first, who in turns creates an incident report. This may or may not occur immediately. The priority will be the wellbeing of the patron/potential plaintiff who fell. An employee will conduct their first interview (witness collection) with the person who was injured. That individual may be able to tell the employee exactly what happened or part of what happened or what they remembered to have happened. They might be emotional and may be with other family or friends who want to tell you or your employee what happened. This can be overwhelming. If one does not take charge of an incident, it can spiral and potential witnesses and their statements could be lost.

If the employee witnessed the event, they must try to recall what they saw and believed to have happened while the potential plaintiff tells them what happened. Essentially, they have two versions of the same event in their mind and must offer both versions to their superior and document the same. Sometimes employees take on the responsibility to do everything themselves: tend to the potential plaintiff, conduct interviews, call police/EMS, and draft an incident report. This is very common and understandable given the way incidents at businesses occur. It is important to remember that we are all human and staying organized can help protect your business when an incident occurs. The best thing to do is to have a plan, and the first thing you should is to prepare for things to not go according to plan.

Even if you have a system in place, here is another way of thinking or handling situations: if a business has the luxury of multiple employees, then it might make sense to designate one employee to interview the potential plaintiff and another to collect information from other potential witnesses. If there was an employee who witnessed the event, then they should perhaps jot down what they believed they saw first while it is fresh in their mind, and another employee should be discussing with the plaintiff what happened. Employees everywhere usually “wear many hats,” but perhaps there is a way to be more efficient when collecting information and details regarding an event. The burden of figuring out what works best falls upon the business owner and the highest-ranking employee. Sometimes you have great employees who can do it all and just need the right support. Maybe what is needed is some sort of way to communicate with each other while incidents occur and during the aftermath, such as walkie-talkies.

Incomplete witness collection can open the door for multiple theories of recovery by a plaintiff. Plaintiffs usually claim that a substance caused their slip and fall. Once a potential plaintiff is able to tell an employee what occurred, either the same employee or another employee should inspect the area not only to see if there is a substance on the floor (or a hazard), but also to see who is in the area. You want to know if someone else saw something or inspected the area where the plaintiff fell – maybe there was nothing there, or maybe there was. We want to know if anything was on the ground and see if we can identify the hazard or how long it was present. We want to know if anyone else traversed the area where the incident occurred, prior to the incident happening. Little things and details like what kind of shoes the patron was wearing, their age, or appearance matter and aid the investigation.  If the potential plaintiff cannot tell us, then maybe someone else who was in the area could.

For confirmation of all of those things, an employee can look at surveillance footage (if it exists) to identify other potential witnesses. This can be done after canvassing the area for witnesses. Perhaps you designate someone to review the cameras and footage immediately after an incident occurs, or if you don’t (which is common) then it is more likely than not that the footage is reviewed later that day when the witnesses have left the area and/or building entirely.  If one cannot identify any potential witness, then we are stuck with the plaintiff’s version of events and only hope that video cameras were located near the area and captured the incident. This is why witness collection is the first vital step in defending a lawsuit and one of the first mistakes a business can make in a slip-and-fall incident.

Delayed Documentation

This issue essentially stems from the issue of incomplete witness collection. Generally speaking, when an incident occurs, a business generates an incident report that may be internal to begin with, but it is important to note that the incident report is something that is discoverable. The plaintiff has every right to request related documents to an accident once a lawsuit is filed, such as the incident report. Some businesses also request that a patron fill out their own incident report to document the event. If neither were completed, then we are all starting behind the eight ball so to speak and must conduct interviews maybe a year or two after the incident where the memory of an individual regarding an event could be faulty. If we have incident reports, we can refresh the recollection of witness, but even more importantly, we can begin to assess the plaintiff’s theory of recovery. As stated before, the plaintiff will always, or at least should always, request all related documents to an incident, such as an incident report and that request may also include photographs, surveillance footage, or any other type of media. The requests can really be broad and voluminous depending on the nature of the slip and fall.

If the nature of the slip and fall has to do with pavement, i.e., pavers or steps, the plaintiff will most likely request contracts, invoices, blueprints – anything that may help identify other potential defendants but also responsibility for the area where the plaintiff had the alleged accident. A business owner must be diligent and organized with recordkeeping before and after repairs are made.

Defense counsel depends on the actions taken by a business owner and their employees when incidents occur. We also could be hamstrung by the inactions of a business owner and their employees. The request for documentation during a lawsuit requires us to respond timely to requests or face motion practice and penalties. Inaction by employees or business owners, as well as disorganization, naturally delays our responsiveness to these requests.

Failure to Preserve Evidence

Sometimes the issue is not just with delayed documentation, but a failure to preserve evidence, meaning for some reason or another the potential evidence does not exist OR existed at some point, but your business failed to save it. The most common evidence that a business fails to preserve is surveillance footage. Some businesses have protocols that include automatically reviewing footage, saving the footage, and sending it to their insurance carrier after an incident. Some businesses employ a third-party for surveillance footage in order to retrieve the footage. Some footage is only available for a short period of time and some for a much longer period of time. The clock could be ticking immediately when the incident occurs. You could have more or less time to save the footage and review or to send to your carrier and defense counsel depending on what kind of system you have. It is very important to know what kind of surveillance system you have and how long footage is available because this will always come up. Maybe you need to retool your protocols and procedures once you find out what system you have. This will help you in the long run to defend cases, and also to comply with discovery obligations when a lawsuit is filed against your company.

Another important thing to look out for that could “start the clock” is a letter of representation from an attorney. They might immediately tell you they want the surveillance footage, and this letter may come two weeks after the incident … or a year later. This is why we recommend knowing your surveillance system well enough to be able to affirmatively say that the footage exists or does not exist because of the retention policies or natural expiration of footage based on the system.  There must be an objectively reasonable explanation as to why certain documents or footage were not preserved.

Final Thoughts

Now that we discussed the three main mistakes businesses make with slip-and-fall incidents, it is important to see the bigger picture. These mistakes are very closely related to each other. You can take the issues in any order and see that. If you fail to preserve evidence like surveillance footage and were unable to identify witnesses or only obtained some witness information, then the documents that are requested a year or two later become delayed or worse – nonexistent. If documentation is delayed, was it due to the employee’s failure to collect witness statements or failure to preserve evidence? These mistakes can be costly, but there are ways you can help your business. A change in protocols or an update in protocols can help. Define expectations of employees or designate certain employees with the responsibilities to do certain things when an incident occurs. Update internal systems on the computer with document retention programs. We must be able to explain why something happened or why something did not happen. To err is human, so we invite your questions on this topic and offer a little perspective from defense attorneys in order to aid your businesses and avoid these three common mistakes that businesses make.