When documenting an alleged premises liability incident, whose account and impressions should be memorialized?
Not all incident reports need to contain a place for handwritten statements. But if yours does, should you obtain statements from all witnesses? Just employees? Just the injured person?
Handwritten statements can be immensely helpful – or very harmful—depending on the case and the person completing the form. Typically, it's not cost effective for companies, particularly those with high employee turnover, to train all employees on what details are important to document when an incident occurs on premises.
While there are certainly reasons for not providing an injured person with a copy of the complete incident report, allowing him or her to take home a copy of just his own statement may have some advantages. For example, it reduces the likelihood that the customer will inaccurately remember the event months or years later if/when he considers a lawsuit.
In addition, it assists potential plaintiff attorneys with properly evaluating a would-be plaintiff’s case and decreases the chance that an attorney will take the case if the potential plaintiff’s own statement exposes himself to dismissal under the open and obvious doctrine or limits the alleged injury to something very minor. This can keep costs down by potentially nipping nuisance cases in the bud and preventing them from being filed in the first place.
Something else to consider is the ability of a premises owner, an insurer, or a third party administrator to obtain statements or affidavits in the weeks or months after an incident has occurred. This individual would likely have more experience in understanding what details would be vital to document and what language would appropriately capture the witness’ recollection of events.
This course would lower the risk of unsolicited damaging information but still allow for obtaining a statement while the incident is relatively fresh in the witness’s mind. When an initial investigation reveals significant helpful information, documenting it in an affidavit can establish defenses like a lack of notice, the open and obvious nature of a hazard, or otherwise provide fodder to aggressively respond to merit-less lawsuits early in the the litigation or claims process.
Margaret A. Czuchaj is a member of the firm's Torts & Litigation Practice Group who focuses her practice in the areas of premises and retail liability, as well as claims related to first and third party auto negligence.
Ms. Czuchaj ...
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