THE BASICS OF PRESERVING EVIDENCE AFTER A SLIP AND FALL ACCIDENT
With Spring just around the corner, Florida residents are gearing up for the rainy season. 2016 expects to see an uptick in inclement weather due to the phenomenon known as “El Niño.” As many business owners and property managers know all too well, rainy weather creates the perfect conditions for slip and fall accidents to occur. Slip and fall accidents are not limited to wet weather conditions, however. These types of accidents frequently occur because of items such as trash, merchandise, miscellaneous debris and leaks or spills. Left unattended, those conditions can result in customers and employees sustaining injury on the business’ property, thus exposing the business owner or property manager to lengthy and costly litigation. If Benjamin Franklin had been able to see into the future, he may have said that nothing in this world can be said to be certain, except death, taxes and slip and fall accidents.
While the importance of policies and procedures to protect against and prevent the occurrence of slip and fall accidents cannot be overstated, it is equally, if not more, important for business owners and property managers to have a system in place in order to preserve evidence after a slip and fall accident has occurred. Doing so will not only save time and money in the future, it will also place the business owner in the best possible position to prevail in the event an accident victim initiates litigation. The following three-step process will help in ensuring your business is as protected as possible after a slip and fall accident.
DO NOT CLEAN IT UP! – Guard and Photograph the Condition and Accident Area
Do not immediately clean the condition that allegedly caused the accident. This may seem counterintuitive as the instinct to rectify the condition would be the best way to prevent additional accidents. However, immediately cleaning the condition can result in the loss of important photographic evidence. Instead, the staff member or employee who is first notified of the accident should immediately take steps to secure the area to prevent additional accidents from occurring. He or she should place caution cones, close off the area or have another staff member or employee stand guard at the area. Once the area has been secured, have another employee take photographs of the condition.
If possible, include a means of measuring the condition and/or accident area in the photographs. Be sure to take a photo with and without the object or tool used for measurement; a ruler or measuring tape is always best. Photographs ensure that several key pieces of evidence are preserved: the size of the condition, whether the condition is dirty or clean, the existence of footprints, slip marks or tracking, the condition’s color and density, and the potential type of condition (water, soda soap, etc.). Photographs taken by a business following an accident are protected by the work-product privilege in most instances. This means that, in general, the photographs will not have to be given to the other party at the outset of litigation. Remember, there is no such thing as too many photographs. As the saying goes, a picture is worth 1000 words. It may also be worth thousands of dollars.
CAUGHT ON CAMERA – Preserve Surveillance Footage of the Accident and more
Immediately review and preserve any security or surveillance footage of the area of the accident. Most businesses use video surveillance to document customer and employee accidents in addition to preventing theft. At least one hour of footage prior to, and following, the accident should be preserved if possible. Surveillance footage can provide valuable evidence regarding the source of the condition, how long it was present prior to the accident, how the accident occurred and the accident victim’s actions immediately before, during and after the accident. Surveillance video can also be used to track an accident victim to identify potentially fraudulent behavior and to identify when the last inspection of the accident area was inspected or cleaned by the business. Unfortunately, during litigation, Florida law does not allow for a business to withhold turning over the surveillance video of a slip and fall accident to the accident victim. However, the footage is an immensely valuable tool for the business owner or property manager with respect to investigation, case valuation, causation of injuries and for use in depositions and settlement negotiations. In other words, a business owner is far better off with video than without.
WITH MY OWN TWO EYES – Record and Preserve Witness Statements in Writing
A business owner or property manager should be sure to immediately identify and obtain contact information and statements from all witnesses and individuals with knowledge of the accident, including the accident victim. In many cases, another customer will witness the accident or be the first person aware that an accident has occurred. These witnesses can provide valuable information regarding how, or even if, an accident occurred, the cause of the accident, the victim’s behavior and mannerisms, and potential signs of injury. Witness statements should include the date and time of the accident, the location of the accident, the type of accident and cause, the witnesses’ first and last name, telephone number and home address, a detailed description of the accident and condition, and the identity of any additional witnesses to the accident. Good witness statements can be used to later combat inconsistencies in the accident victim’s claims or recollection of the accident and can also be useful for refreshing the memories of employees where a large amount of time has passed between the accident itself and litigation.
It is important to remember that any accident, no matter how seemingly small or insignificant, can result in a claim or lawsuit. In Florida, an accident victim has four years from the date of the accident to file a lawsuit. During this time, memories are lost, details become fuzzy and the information that was once readily available could be lost forever if not properly preserved. The quality and amount of evidence preserved at the time of the accident can be the difference between exoneration and thousands or even millions of dollars in liability.