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 Two – The Incident Report
The incident report should cover the following factual information and should, if at all possible, be completed by the customer (or at least from the customer’s perspective):
- Specific location on premises
- Customer name and contact information (address, email, phone number)
- Customer date of birth
- Customer recall of incident
- Customer recall of injuries
- Any witnesses’ names and contact information (particularly any individual with the customer when the incident occurred)
- Witness recall of incident
It is important that the customer record in their own words what happened. The best practice is to allow the customer to complete the form rather than the manager (as long as the writing is legible). In those instances when a customer is unable or unwilling to complete the incident report, it is important to have another employee present to hear the customer explain what happened and to sign off on the incident report. The report should reflect the customer’s statements such as, “Customer states she slipped on wet floor,” rather than, “Customer slipped on wet floor.”
Additional facts and observations of the manager or employee may be documented on an incident report as long as they reflect facts and not inferences, assumptions, or conclusions. Examples of the observations that should be made by the manager or supervisor and documented accordingly on the incident report include:
- Wet floor signs or other warning signs in the area (noting quantity, location, and duration)
- Customer’s attire, including shoes, and their condition (i.e., jeans wet from right knee to bottom, flip-flops)
- Customer pushing cart or carrying items
- Whether photographs were taken of the alleged defect (i.e. substance on floor). When taking photographs it is important to take them from close range and also from farther away to depict the condition of the surrounding area. Do not take photos of the customer.
- Video surveillance – whether it is available (yes/no) and if so, preserve accordingly.
- Identification of associates in the area at the time of the incident
- Weather conditions
- Lighting conditions
- If the incident involves products or merchandise, include a full description of the product including UPC codes, manufacturer, and photograph(s).
The incident report should have no assumptions, inferences, analyses, or conclusions about why or how the incident occurred or how to prevent another similar incident. Most jurisdictions in Ohio will likely require the production and discovery of an incident report. For this reason, it is important to limit the report to the facts.
A tailored incident report form and the training of personnel on completing the incident report are vital in addressing the risk of liability. If the incident report form fails to ask direct and concise questions it could actually create liability where none may have existed before. An example of this:
- Describe the condition of the floor where the incident occurred? Was the condition open and obvious? Was the store on notice of the condition?
While from an investigative standpoint, these observations and conclusions may be important, they invite liability on an incident report that will likely be disclosed to the opposing party during litigation. Further, two of the questions ask for arguably legal conclusions that employees typically are not equipped to render. The better question would be:
- Describe the specific location of the incident in the store. Was there any foreign substance, liquid, or object within the area of the incident?
This question is more likely to elicit a “factual” response rather than an opinion.
Look for Part Three Next Week: The Investigation Report