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.
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