Slip & fall
Each year, slip, trip and fall losses cost the hospitality and retail industry millions. The mere fact that a customer falls on your premises does not necessarily create liability. Instead, the question is often whether your establishment had superior knowledge of a hazardous condition that exposed customers to an unreasonable risk of harm.
Even if your company did not have actual knowledge of a hazard, a customer may be able to recover if there was an employee in the immediate vicinity of the hazard that had an opportunity to correct the condition, or the hazard was present for a sufficient length of time that knowledge is imputed.
Consequently, it’s beneficial to be able to show that the establishment had in place — and followed — reasonable inspection procedures leading up to the customer’s incident. Understanding these legal elements of recovery underscores the importance of documenting on-premises incidents.
Proper investigation at the time of an incident is indispensable in assessing potential liability. It also helps refute liability if the establishment did nothing wrong but still gets sued. The following is a check list of preventative measures as well as tips for responding to incidents in order to avoid or mitigate litigation.
Reasonable Inspection Procedures: Establish procedures to ensure that floor surfaces don’t create hazards (e.g., securing rugs, mats and caution signs in rain). Also:
Identify and warn of potential static hazards — steps, changes in levels.
Evaluate lighting conditions (amount of lighting, flare, lack of color contrast) and correct or warn accordingly.
Train on maintaining a lookout and ways to warn/remedy potential hazards such as spills, dropped napkins, and customer items such as purses or umbrellas.
Establish routine inspections for hazardous conditions and procedures for documenting and correcting hazards.
Designate by title the person(s) responsible for investigating incidents and train employees on investigative procedures and protocols for dealing with incidents.
Post emergency telephone numbers for police, fire and ambulance.
Provide a camera for photographing the scene at the time of an incident.
Staff Preparation: In preparing the staff and store for handling incidents, designate by title the person(s) responsible for investigating incidents. Also:
Train employees on investigative procedures and protocols for dealing with incidents.
Post emergency telephone numbers for police, fire and ambulance.
Provide a camera to photograph the scene at the time of an incident.
Designate by title the person responsible for reviewing incident reports for completion, accuracy and uniformity. If adequate, the signed form should be sent to corporate or the insurance company, keeping a copy for the store file. If inadequate, the designated individual should further investigate.
Promptly take follow-up action as necessary (for example, if a hazard has not been corrected, to warn or correct as appropriate).
Response: In responding to an on-premises injury, provide immediate assistance, showing concern and calling for emergency medical assistance if appropriate. Employees should immediately report the incident to designated management. Also:
Document the incident. Promptly complete an Incident Report Form and evaluate the cause of the incident. Observe the customer’s clothes for wetness and shoes for signs of wear, metal, long and untied laces and appropriateness for the weather. Document the scene — with photographs if possible — and the hazard (or lack of hazard), the bottom of the injured person’s shoes, and their clothes if they say they slipped on something wet.
Identify photographs and video noting the location, name of the injured party, date and time of the incident, date and time of the photograph, the location in the establishment of the incident and the name of the person taking the photograph or video.
Maintain an incident file. Establish a procedure for evaluating if a particular area is a recurring problem and correct or warn of identified problems.
An incident should not be discussed with anyone outside of the company. Employees should notify management immediately if anyone is asking about the incident, and management shouldn’t speak with anyone about the incident without approval from the establishment’s legal counsel.
Michele L. Stumpe is a litigator at Atlanta-based Taylor English Duma, concentrating on premises liability, business litigation and hospitality.