Part 1: Customer Incident Reports and Investigations – A Two-Part Defense Strategy and Why You Need Both

Over the next few weeks, we’ll be issuing a series of articles by MRR attorney Elisabeth “Lisa” Gentile that describes a two-step defensive strategy for use by business owners and managers should guests or patrons suffer an injury on their premises. The time and money utilized in employing this two-part process far outweighs the risk of an adverse judgment should a business not have the proper tools to defend itself should an incident lead to litigation.

Part One

When a business is open to the public, it is also open to an array of circumstances that could expose it to liability if an individual (non-employee) claims that an incident occurred causing them injury.  Predominantly, incidents tend to be slip and falls, but could also include falling merchandise, poorly maintained shelving units or displays, doors or cabinets that swing open, etc.  There is a vast array of objects and conditions in a business that an individual may claim caused them injury once exposed to the object or condition.

The determination as to whether there is any liability on the part of the business owner lies largely in the facts surrounding the incident.  It is for this reason that immediate investigations are crucial in properly assessing incidents and documenting the events surrounding the incident.  Typically, a person injured in an incident on business property must show that the incident was caused by a condition that the owner or possessor of the property knew about and failed to correct.  In Ohio, to establish that a business owner or possessor knew about the condition prior to the incident, it must be shown that:

  • The owner or possessor created the condition;
  • The owner or possessor knew the condition existed and negligently failed to correct it; or
  • The condition existed for such a length of time that the owner or possessor should have discovered and corrected it prior to the incident in question.

For the business owner or possessor to be held liable, the opposing party must be able to show that it was foreseeable to the owner or possessor that an individual may be harmed by the condition.  For example, in a retail store, if a gallon of milk fell off the shelf onto the floor and was not cleaned up by the store within a reasonable period of time, and an individual slips and falls, it is arguably foreseeable that the store was negligent in failing to properly inspect its aisles and clean up spills.  The key point is the question of whether the condition was addressed in a reasonable period of time, which is a fact-driven analysis and what makes immediate, concise incident reports and investigations so crucial.

Incident Report vs. Investigation Report…The Combo You Shouldn’t Do Without

The fundamental difference in the two processes are:

Incident report = facts (strictly facts from direct observations and statements from customer)

Investigation = development of facts and formulation of opinion and possible further action

In order to accurately and thoroughly document an incident, a business must develop a concise incident report tailored to its business.  When an incident occurs, there is typically limited time to interact with the customer and oftentimes emotions may make this process even more difficult.  Depending on the nature of the injury, the customer and other individuals may react frantically or the scene may become chaotic.  Therefore, it is important to have a concise process to handle these obstacles.

Documenting an incident means gathering factual evidence and not drawing conclusions, inferences, analyses, or assumptions about that factual evidence.  The next step of investigating an incident is important for customer safety, defense strategy, customer service, business longevity, and reduction of risk of liability.   Thorough incident reporting and investigation can be THE difference between winning a case or losing a case and facing substantial awards—even on incidents that at first glance do not seem significant when they occur.  The business must establish a process for completing an incident report and ensuring that personnel completing the report have the proper training.

Look for Part Two Next Week:  The Incident Report

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Pollock Earns Ohio State Bar Specialist Certification in Labor and Employment Law

Mazanec, Raskin & Ryder, Co., L.P.A. (MRR), is proud to announce that Columbus attorney Stacy V. Pollock is now an Ohio Bar Association Certified Specialist in Labor and Employment Law.  This certification marks Ms. Pollock as one of a small number of attorneys in the state of Ohio to have earned this distinction.

In order to become a Certified Specialist, Ohio attorneys must, in addition to fulfilling the standard requirements for practice before Ohio’s courts, meet additional criteria including:

  • The demonstration of substantial and continuing involvement in a particular field of law;
  • The submission of references from other lawyers attesting to their competency in the specialty area;
  • Attendance at intermediate or advanced continuing legal education courses in the specialty area; and
  • Passing a written examination in the specialty area.

Attorneys who have earned a specialty certification must be re-certified at least every four to seven years and report annually to the Supreme Court of Ohio’s Commission on Certification of Attorneys as Specialists.

“I am pleased to now be in a position to offer my clients an even higher level of expertise in my labor and employment practice,” said Ms. Pollock. “I believe that the certification provides those needing counsel in labor and employment matters another measure of assurance that I am committed to providing them with the most comprehensive guidance possible.”

“We are truly proud of Stacy,” said Joe Nicholas, MRR President and Managing Partner. “As a part of her commitment to providing the best possible service to her clients, she undertook the rigorous process of certification. Her successful efforts set her apart from many other employment and labor law practitioners.”

As a part of her employment and labor law practice, Ms. Pollock advises public and private employers in matters involving leave and discipline issues, personnel policy matters, and labor negotiations and arbitrations. When necessary, she defends them in state and federal court. She has experience representing clients before various governmental administrative agencies including the Equal Employment Opportunity Commission, the Ohio Civil Rights Commission, the State Personnel Board of Review, the State Employment Relations Board and the Ohio Department of Education. Ms. Pollock also advises clients on workers’ compensation matters and regularly appears before the Industrial Commission. She also has considerable experience in education law, representing schools and school administrators involving employee and student disciplinary matters.

Ms. Pollock also brings to the table many professional accomplishments and accolades. In addition to her Ohio State Bar Association certification in labor and employment law, she is also a Certified Professional in Human Resources through the HR Certification Institute. Ms. Pollock is a member of the Ohio State Bar Association, the Columbus Bar Association, the Ohio Council of School Board Attorneys, and the National School Board Association’s Council of School Attorneys. In addition, she has been selected as a “Best Lawyer in America” for Education Law (2016 & 2017) and named an Ohio Super Lawyers “Rising Star” in Employment Law by Ohio Super Lawyers magazine (2014-2017). Ms. Pollock earned her law degree from the Chicago-Kent College of Law and her undergraduate degree from Wittenberg University.

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Internal Investigation Notes May Now Be Public Record

By Tami Hannon

Most public agencies understand that their records are public. But what about those records created by private individuals hired by a public agency?  Specifically, what about notes taken by a private individual while conducting an investigation on behalf of the agency?  A recent decision issued by the Ohio Court of Claims indicates that yes, those records are also public record.

In Hurt v. Liberty Township, the Board of Township Trustees hired an outside private attorney to investigate possible wrongdoing by the fire chief. The attorney conducted numerous interviews during which he took notes. He later used those notes to prepare a report to the trustees, though the notes themselves were never given to the township. The investigation revealed potential wrongdoing and the attorney was instructed to prepare the statutorily required charges against the fire chief. Prior to the removal hearing, the fire chief’s attorney subpoenaed the investigator’s notes. A copy of those notes were provided at the hearing for his review.

Later, two individuals made a public records request for several items, including the attorney’s notes. The township and the attorney refused to provide the notes on the basis that they were not township records as they had been created and maintained by the private attorney. The requestors used a new provision in R.C. §2743.75 to file a claim with the Ohio Court of Claims alleging an improper denial of public records. That court recently ruled that the notes are, in fact, public records subject to disclosure.

The court relied on several factors in reaching that conclusion. First, the court found that the private attorney had been retained to perform a function statutorily delegated to the township, specifically investigating potential wrongdoing by the fire chief. The notes documented the performance of that function. Second, the notes were used to prepare the report (a public record) but did not appear to have been substantially duplicated in the report. As information was contained in the notes that was not contained in the report, the court found that the notes were a separate record and not a duplicate of the report or a transient record used to assist in preparing the report. Finally, the court found that the fact that the township did not have possession of the records was immaterial as the attorney had carried out an official function, the township had monitored his performance and the investigation and the township could have access to those records.

Historically, personal notes have always been a grey area. Some courts have found that the notes are not public record if they are merely kept to help the individual recall something and are not shared with others. Notes taken that are later incorporated into a report and discarded have also historically not been public record. The issue was less clear when notes were shared with others and relied upon by them, or when the notes had some value apart from the report itself, such as when the entirety of the notes were not incorporated into the report.

In Hurt, the court held that the notes from the interviews during the internal investigation were not merely kept for personal convenience or discarded once the report had been written. Rather, the court found that the notes had a separate value given that they were retained and provided to the other attorney during the pre-disciplinary process which indicated that they contained information not otherwise incorporated into the written report. As such, the court held the notes left the realm of personal records and became public records.

In Hurt, a specific statute required the township to conduct an investigation and authorized the hiring of a private individual to conduct that investigation. The obligations in that statute built the foundation for several of the court’s findings. While the issue before the court was limited to that specific statute, it opens the door for notes made during any statutory investigation to be public records. The issue is less clear in cases of general workplace misconduct or harassment, as best practices and risk management require an investigation but the statutes do not. The lack of a statutory obligation may offer some protection to those investigations. Until the law becomes more developed, investigatory notes and interviews may be public record, even when the investigation is performed by an outside third party.

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MRR Ohio Legislation Updates: February 24 – March 9, 2017

Notes from the House of Representatives

  • HB No. 91 was introduced to develop and conduct a chief of police training course for newly appointed village, city, and township chiefs of police.
  • HB No. 102 was introduced to replace locally levied school district property taxes with a statewide property tax and require recipients of certain tax exemptions to reimburse the state for such levy revenue lost due to those exemptions; to increase the state sales and use tax rates and allocate additional revenue to state education purposes; to repeal school district income taxes; to require the Treasurer of State to issue general obligation bonds to refund certain school district debt obligations; to create a new system of funding schools where the state pays a specified amount per student that each student may use to attend the public or chartered nonpublic school of the student’s choice, without the requirement of a local contribution; to eliminate the School Facilities Commission; to eliminate the Educational Choice Scholarship Pilot Program, Pilot Project Scholarship Program, Autism Scholarship Program, and Jon Peterson Special Needs Scholarship Program; to eliminate interdistrict open enrollment; to require educational service centers to transport students on a countywide basis; and to permit school districts to enter into a memoranda of understanding for one district to manage another.
  • HB No. 5 was passed on third consideration to create a statutory definition of microbusiness.
  • HB No. 113 was introduced to prohibit any requirement that employees of private employers join or pay dues to any employee organization and to establish civil and criminal penalties against employers who violate that prohibition.

Notes from the Senate

  • SB No. 72 was introduced to allow political subdivisions, special districts, and state institutions of higher education to elect to apply the Prevailing Wage Law to public improvement projects.
  • SB No. 83 was introduced to establish the duties and authority of the Attorney General to investigate and prosecute cases relating to the death of a person caused by a peace officer.
  • SB No. 84 was introduced to require the Ohio Peace Officer Training Commission to develop a course to train peace officers in performing their duties without biased policing or status based profiling; to prohibit law enforcement officers and officials from engaging in biased policing or status-based profiling; to require each law enforcement agency to develop and provide annually to its officers an educational training program on how to perform law enforcement duties without engaging in biased policing or status-based profiling; to create the racial and identity profiling advisory board; to provide a civil cause of action for an individual who is a victim of biased policing or status-based profiling; and to permit the Attorney General to seek injunctive relief against a law enforcement agency served by an officer who commits biased policing or status-based profiling.
  • SB No. 88 was introduced to modify the composition and powers of the financial planning and supervision commission of a political subdivision that is in a state of fiscal emergency and to clarify the duties of that political subdivision.
  • SB No. 91 was introduced to establish and operate the Ohio Health Care Plan to provide universal health care coverage to all Ohio residents.
  • SB No. 94 was introduced to abolish the death penalty.
  • SB No. 95 was introduced to require a public authority to consider all piping materials that meet the engineering specifications for a state-funded water or waste water project.

For further information, please contact:

Stacy V. Pollock – MRR Columbus
614.324.0163
spollock@mrrlaw.com

 

 

 

 

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