This is the last in our series of articles by MRR attorney Elisabeth “Lisa” Gentile describing 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 3: The Investigation Report
The investigation process is a much more thorough analysis of not only what happened, but also why it happened. It is imperative that an investigative report document be protected from the discovery process since it will likely contain conclusions and possible remedial actions. Therefore, it is highly recommended that an attorney be involved in this process in order to invoke the confidential attorney-client privilege and work product doctrines.
Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action.” Potentially applicable privileges include the attorney-client privilege, which “prevents the disclosure of certain communications made from a client to that client’s legal counsel,” and the work product doctrine, which protects from discovery “documents and tangible things prepared in anticipation of litigation.” Ohio courts have repeatedly held that the attorney-client privilege protects from discovery witness statements or reports that are given to one’s legal counsel for the purpose of preparing a defense to a lawsuit. Therefore, it is important to obtain legal counsel’s involvement in this process.
An investigation should be conducted by legal counsel or a manager working under the guidance and instruction of legal counsel. Once an incident occurs, legal counsel should be notified within 24 hours and the attorney or the designated agent in the company (such as an asset protection or loss prevention manager) should begin the investigative process within the following 24-48 hours. It is imperative that any and all documents that are utilized in the investigation process contain language at the top of the document designating the document as attorney work product prepared in anticipation of litigation. Although not a guarantee in every jurisdiction, this will make it more likely than not that the investigation conducted will not be subject to disclosure to the opposing party.
The investigation should include the following:
- Incident report review with manager
- Incident report review and interview with employee that completed the report
- Analysis of what may have caused or contributed to the incident, including how the condition came to be and how long the condition lasted
- Procurement of all photographs taken
- Procurement of all video surveillance (it is recommended that video is captured for 24 hours prior to AND 24 hours following an incident)
- Clock report of all employees working at time of incident
- Interview of each employee separately as to their knowledge of the incident and any interaction with the customer
- Procurement of any company policies relevant to incident conditions (for example, how ice is handled, or, if the floor is wet due to mopping, obtain any current mopping procedure utilized by store)
- Procurement of any physical evidence (i.e. falling object that struck customer or object that customer tripped over)
- Identification of any other customers within incident area that may have knowledge and separate interviews of these individuals
Following the interviews, a statement should be drafted by counsel based upon each employee’s or witness’ recollection. The statement will be sent directly to the employee or witness for their review of its accuracy and, if no changes are required, final signature. Typically, the statements are limited to factual observations or information within the direct knowledge of the employee or witness and should refrain from conclusory statements or opinions unless directly related to the condition of the premises.
The Ingredients of Success….
When you have a completed a concise incident report and a thorough investigation, you have the main ingredients for a solid defense or assessment should litigation be pursued. In Ohio, a customer has two years to bring an action for an injury. In that two year period, many personnel changes may occur within the business and the employees with knowledge of the incident may no longer be employed with the company or may not be able to recall with specificity what occurred. In that instance, you have a statement signed by the employee as to their recollection close in time to the event. It is difficult to win a premise liability case if there are no defense witnesses to testify as to what occurred. Further, the procurement of the evidence, such as photos and video, helps to protect against the customer changing their story as to what happened or the condition of the area at the time of the incident. 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 against this type of litigation.
 Civ.R. 26(B)(1)
 Hunter v. Wal-Mart Stores, Inc., 12th Dist. No. CA2001-10-035, 2002-Ohio-2604, ¶ 36
 Id., at ¶ 35; Civ.R. 26(B)(3)