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What
you say and do makes a difference!
This
article offers some insight that may help you prevent “accidents”
from becoming lawsuits. Part
of your risk management plan could address these situations.
Time of the
essence
The brief
period following an accident or incident can be the key to your legal
defense several years later. Use
that time wisely! These are
the minutes when you have to treat the injured party; the hour(s) before
the evacuation; the minutes or days before the other guests leave and
their memories of the events are changed or forgotten; the time before
your guides forget the details or leave your employ; and the responses
to the media following the incident.
Let us look at each of those.
Your guests
Most lawsuits are
filed by guests for one, or both, of the following reasons. One, they believe they were not properly informed of the
requirements and hazards of the activity; or two, guests feel you have
not demonstrated the highest level of care and concern for their
well-being and personal safety.
In the first
instance, your only real protection is the guest’s signed waiver. Although you may offer safety speeches or instruction prior
to trips, this can come to hearsay as to whether they were properly
informed, whether they could hear the speech, whether they could
understand the speech, … etc. Therefore,
having a signed waiver is extremely important for every guest that
participates in your activities as it provides, in writing, evidence
that the guest did understand the hazards of your activities.
In the second
instance, the care and concern you provide starts in the minds of guests
at the beginning of their activity with you, so make a personal
connection. Address guests by
their names. Treat
them, their concerns, and their family members as individuals and as
honored guests. If a guest is injured, we recommend trying to keep one guide
with the injured party from the time of initial response and with
treatment through evacuation; waiting for him or her at the doctor’s
office or hospital; and following up afterward.
That personal relationship and consistency can reduce stress,
help calm and assure the injured party, and is often the key factor in
whether the injured party chooses not to file suit.
Personal care and attention do matter.
Take the actual case
of whitewater adventurers who were seriously injured: They or their
attorneys subscribed to the belief that “… for every societal wound,
there must be a financial poultice.”; however they enjoyed their guide
and appreciated the care and concern demonstrated after the incident, so
they didn’t sue the guide. They
did sue the travel agent who booked them without providing adequate
warning about the hazards of the activity!
What do I
say?
If an incident
occurs, be responsive. It
is okay to let the guest know you are sorry they are hurt and you are
doing everything you can. Be
both empathetic and sympathetic. Show
care and concern, both for the injured party and for other participants.
While one person may be injured, family members and other guests
may be experiencing shock or concern for their own safety, or may be
generally “shaken” by what they have seen or experienced.
Help your guests feel they are in capable hands.
Check with them about how they are doing. You need to provide a calm, settling influence on the guests.
It is okay to say things like, “I’ve sent for help.”
“The techniques we practiced in the Red Cross first aid class
seem to have stopped the bleeding.”
“I’ll do everything I can to keep you comfortable (until we
evacuate, continue, etc)…” Both
the injured party and others need to be reassured.
Their evaluation of what happened and how you handled the
incident can be important issues if litigation ensures.
What don’t I
say?
Don’t admit
wrongdoing, e.g.,
“Oh, you’re the third person that darned horse has thrown.”
“Gee, I must not have adjusted your climbing harness
correctly.” “The brakes
must have failed.”
Don’t
make value judgments, e.g.
“Well, that was a stupid thing to do.”
“You said you were an experienced equestrian, so we gave you a
spirited horse.” “Anybody
with half a brain could have…,” etc.
Don’t
guarantee a speedy evacuation. You
may have no control over the timing, and your idea of “soon” may be
very different from that of an injured party.
Don’t profess
to be a medical expert.
Don't promise you or your company will "take care of", or pay for
possible medical or related bills.
Photographs
If you or your
guests have a camera available, take photographs of the incident site
and of the injured party as soon as possible.
Photos of the physical conditions encountered immediately prior
to the incident, i.e. steep terrain, a fallen tree obstructed from view
by snow, wet or slippery path or roadways, etc., may be especially
helpful in reconstructing how the incident occurred.
The Media
If there is a
serious accident or fatality, you can expect the media to get in touch
with you. Often, that
contact will be by phone. It
is in your best interest to assign one spokesperson to handle those
media inquires. Let your
other staff know immediately whether inquires are to go through one
person. That person (with
your supervision) should prepare a factual statement (which may need to
be reviewed by legal counsel).
Ø
Be
clear about the assignment. It
is to provide the who, what, where, when, why, and how which go
into a typical media story (though you may not want to disclose
“who” while you are still trying to locate the family).
You will probably want to provide some background on your
organization’s experience at providing the activities and favorable
safety record. It is not
the place to assign blame, admit guilt, faulty equipment, or
speculate about what may have occurred. If a story is delivered in that manner, you will get more
press than you want.
Ø
Attempt to be accurate and provide the facts.
If the answer to a question is unknown, say it is unknown.
Don’t speculate.
Ø
If you are dealing with restrictions, such as not releasing names
until family members are notified; unable to talk with the injured party
until the doctor gives the okay; etc., politely explain that to the
media.
Ø
If you provide, see, or hear erroneous information, correct the
error as quickly as possible. Provide
the correct information.
Ø
No
one (including your chosen spokesperson) is to release any information
assigning responsibility or admitting liability for the accident without
first consulting your insurer’s legal counsel.
Failure to observe this restriction can jeopardize your case
and your insurance coverage.
Ø
It
is often best to say simply, “The incident is under investigation at
this time, and it would not be appropriate to comment further.”
After
the incident
1st.....SECURE THE
CUSTOMER(S) SIGNED WAIVER(S) in a safe place. This will be needed by
the insurance company
if a claim results.
If any equipment
is involved in an incident, pull it out of service, preserve it
securely, and discuss what you should do with your claims representative
and/or your legal counsel. They
may suggest having it checked by an authorized dealer or repair
facility, taking photographs, or returning it to service, as long as it
is marked for easy identification in the future.
Incident-Accident
Reports and Witness Statement
Keep several
copies of an Incident-Accident Report and Witness Statement Report with
your first aid kit(s) so required information can be gathered and easily
recorded after an incident occurs and the guest has been taken care of
by the guide or medical professionals.
Record the information as soon as possible, while memories are
fresh and recollections are clear.
These forms, and the information they contain, will be critical
to your defense. Try to document and record everything said.
Information you obtain immediately after the incident usually
will be more accurate than statements taken at a later date.
Discovery
This term
generally refers to a pre-trial device which can be used by one party,
i.e. a guest injured while participating in an activity offered by you,
etc., in order to assist that party’s preparation for trial.
Tools of discovery include facts, documents, or other things in your
exclusive knowledge and possession.
The litigating attorney can request and obtain any and all
records and can take deposition of witnesses.
For that reason, it is essential that you (and persons
working for or on your behalf) avoid comments, which can be potentially
damaging. Avoid writing or
publicly expressing assumptions, opinions, and personal feelings that
may arise during the stressful time at and after the occurrence of an
incident. Even verbal
statements can be subject to discovery.
Incident-Accident
Report
The insured or
insured’s risk / compliance manager will complete the
Incident-Accident Report form. It
recounts information about conditions at the time of the incident,
provides for the guide’s perspective of events, and includes space for
the comments of others. The
insured or insured’s risk / compliance manager should also provide a
narrative of “what happened, how, and why.”
Try to be factual and objective.
Witness
statement(s)
Ideally, you want
to get statements from all witnesses.
However, if a witness is hostile, blaming, accusing, or otherwise
unfriendly after a catastrophic accident, make sure you have the
person’s name and how to reach them, but leave it to your insurance
company’s claims staff or legal counsel to take their written
statement. Take the written
statements of witnesses who are positive, friendly, or neutral.
When interviewing, ask the question, “What happened?”
It’s a simple question for each person to answer.
The statement may be completed by the witness or taken by someone
from your organization. Once
completed, the witness must review, sign, and date the statement. You can use the same form to note the injured guest’s
version of “what happened” and to note other comments e.g., “If
I’d only followed your instructions about,” or “I know I was over
ice. I didn’t think the snowmobile would…,” or “…
I looked down and panicked.
It wasn’t anything you did,” etc.
Those comments may be of assistance in defending you in the event
of suit. However, your
primary task is to be sure the person is properly cared for after an
accident. We are not suggesting
that you get a signed statement from the Injured guest.
That can be done once the injury has been attended to and the
shock is past. If the
person is in pain, in shock, agitated, or hysterical following an
incident, it is not the time to play inquisitive reporter.
Don’t be insensitive or intrusive.
If the injured party makes comments about what happened, jot them
down when you get a free moment. Try
to put it on paper while the words are fresh.
Report incidents
in accordance with your Claim (Incident)
Notification & Reporting Clause attached within your policy
You must report
all incidents in a timely manner in accordance with your Claim
(Incident) Notification & Reporting Clause.
If your guests are injured or fail to return as expected,
notify your insurer immediately. Whether
you treat them, evacuate them; transport them to medical personnel; they
say they will see their personal physician at home; or your equipment is
found and the person who rented it is gone or missing, notify your
insurer. It is a
condition of your insurance that you inform your Insurance Company of
accidents and incidents which might reasonably result in a claim.
Thompson
– Gusic Insurance Group, Inc.
4067 Greensburg Pike
*
Pittsburgh PA 15221
Phone: (412) 271-8888
*
Fax: (412) 271-8898
Email: insurance@thompsongusic.com
Web: www.thompsongusic.com
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