Many of you have likely seen the video of a man faking a slip and fall at a business in New Jersey. This viral video is an extreme case, but it proves the importance of preserving evidence after a customer reports an incident at your business.
Would it have been obvious this man threw ice on the floor and faked an injury without surveillance footage? Would the business have been able to easily show this was a fraudulent claim if there was no video?
If a customer reports an injury at your business, preserving critical evidence can help to determine legitimate claims from non-legitimate claims. It can also protect the business against a claim of spoliation, meaning that the evidence was purposely destroyed.
I recommend the following checklist after a report of an injury at your business:
- Offer medical assistance. Call an ambulance if injuries are reported. If a customer reports an injury, you want to not only get that person medical care but also to ensure you have documentation of claimed injuries.
- Fill out an incident report form. This should contain the name and contact information of the customer and what the customer alleged occurred (let the customer write it if possible). Do not put evidence that could be used against you in this form.
- Make a list of all employees on duty and document who has information or knowledge about the accident.
- Photograph the scene. Back up the photographs so that they are not just on a cell phone. Save original size images as opposed to shrinking them in the event enlargements need to be made of the photographs.
- Immediately pull and secure surveillance footage. Most surveillance will start recording over itself very quickly (anywhere from two days to two weeks). You have a short window to secure footage.
- Keep everything involving the accident. If a product fell off the shelf, keep it. If a display collapsed, keep it. Keep backing boards, shelving – anything involved with the accident. Many employees think they should discard it since it is broken, when the broken pieces sometime contain critical evidence.
- Interview employees and witnesses. Find out what they saw and what they know. Obtain their current contact information, including cell phone numbers and e-mail addresses. For someone with critical evidence, get the name and contact information of their closest family member in the event you have difficulty locating the witness or employee in the future.
- When necessary, promptly report the claim to your insurance carrier.
- Make sure your staff and employees are trained on what to do in the event of an accident.
For accidents involving serious injuries, I recommend getting counsel involved immediately. For example, our firm offers 24-7 on-the-scene emergency assistance to our clients. This serves our clients in two ways: we make sure all necessary evidence is preserved; and the attorney-client privilege attaches to our investigation and protects critical parts of the investigation, including interviews, so that the opposing side is not privy to it in the future if a claim is pursued.
This does not constitute legal advice. Please seek counsel from a legal professional to assess your specific situation.
Deedee Gasch has over a decade of experience litigating catastrophic claims involving serious injury or death. While Deedee’s practice is primarily focused on the defense of premises liability, trucking and commercial vehicle accidents, and medical malpractice, she also has a wide range of civil litigation experience. She spent approximately half of her career representing injured plaintiffs before returning to her first love of civil litigation defense work. This experience on both sides of a case uniquely situates her in negotiations and at trial if settlement is not possible. Deedee is a third-generation Tar Heel and attorney, following in the footsteps of her grandfather, a North Carolina Resident Superior Court Judge (deceased), and her father, a career trial lawyer. She has dual degrees in Journalism and Political Science and earned her law degree cum laude from Florida Coastal School of Law in Jacksonville, Florida, where she attended on a prestigious merit based scholarship. She is licensed to practice law in both North Carolina and Florida.