Just about every business is at risk for an accident claim, be it by a visitor, an employee in the workplace, or someone using one of its products. When an accident claim arises, it is crucially important to follow a thorough accident-investigation protocol to make sure the company can properly defend itself against a claim that it is responsible for someone’s injury or death. Here are some of our recommended best practices for conducting a proper accident investigation.

Establish an Accident Investigation Team. It is vital that at least one person “own” the company’s accident investigation activities; depending upon its size, a company may need more than one such individual. It also is of critical importance that the individual(s) responsible for accident investigations be identified and trained to follow the company’s accident-investigation protocol well in advance of the need for their services so that they can efficiently and effectively execute the protocol, if and when the time comes. Additionally, someone on the team should be tasked with knowing the company’s insurance coverage and contacting the company’s insurer immediately after the company learns of an accident. This step is important not only because insurance policies often have strict notice provisions, but also because the insurer likely will conduct its own investigation, information from which will benefit the company. Furthermore, the company should determine in advance the extent to which it will involve legal counsel in accident investigations. Adding to the benefit of guidance regarding accident-risk management and its help with significant legal parts of the protocol (e.g., development of a litigation hold on document and data destruction), including legal counsel in investigation activities can protect portions of the investigation from discovery on the grounds of the attorney-client privilege and/or the attorney work product doctrine if a lawsuit is filed.

Finally, the company should inform all employees that there is an accident investigation team and protocol in place, and make clear that employees:

  • Must contact the team leader in the event of an accident
  • Must not attempt to conduct their own investigation
  • Must not make any statements about the accident without prior team leader approval; this requirement will help forestall the making of statements or documents that could pose serious challenges in litigation

Gather Information From and About the Injured Person. Ask for as much information as possible from any person injured, or allegedly injured, in the accident (the claimant) or from his or her lawyer. In addition to the claimant’s description of the accident (see tips on witness interviews later in this article), the team should request photographs or copies of:

  • Accident scene
  • Any product or equipment involved
  • Claimant’s appearance pre-injury
  • Claimant’s injuries
  • Documents, including emails and texts, about the accident
  • Medical records relating to the claimed injuries
  • Releases for the company to obtain copies of medical records directly from medical providers (some providers require release forms; if not, a lawyer can help the company prepare a release that complies with the law)

The investigation team also should conduct independent research on the claimant. Dockets for civil and criminal actions are available online and can be searched by name. The Internet is a valuable resource for other information via Google or Yahoo searches.

Social media such as Facebook, Twitter, and blogs are particularly helpful in finding information that undermines a claimant’s statements about the accident and claimed injuries. It is important, however, to search only for publicly available information on social media. Instead, depending on the nature and severity of the claimed injury, the company may want to engage an investigator to surveil the claimant to determine the veracity of the claim.

Investigate the Product and Accident Scene. A company is often able to inspect the product involved in the accident and/or the accident scene. If possible, the company should involve an expert who can determine the cause of the accident and whether a product presents a safety concern. Working with an expert or not, keep the following in mind during an inspection:

  • Do not conduct destructive testing of a product or equipment without giving notice to other parties potentially interested in the accident, including the claimant, insurers, and manufacturers of products involved
  • Only write down facts you observe during the in spection – do not reach conclusions or form opinions in writing, and instruct any expert involved not to do so, before gathering all available information and talking through any conclusions
  • Photograph and videotape extensively, remembering that whoever takes photos or videos is a potential future witness – consider engaging an outside photographer – and turn off the videocamera’s sound to avoid recording background conversations
  • Preserve any product involved. If the company owns a piece of equipment involved in an accident that must be repaired and put back to use, notify all potentially interested parties and give them an opportunity to inspect it before any repairs are made; if the company does not own it, send a letter to the owner explaining the legal obligation to preserve the evidence

Gather Documents. Myriad documents and evidence surface when an accident occurs. Create a checklist the investigation team can use to ensure that all relevant documents have been gathered and preserved for evaluation in determining the cause of the accident. Below is a non-exhaustive list of common documentary evidence associated with accidents:

In general:

  • 911 tapes
  • Aerial photographs of the scene
  • Autopsy report and coroner photos
  • EMS report and photos
  • Fire department report and photos
  • Insurance company records for all insurers with whom a claim could have been made
  • Media coverage (print, broadcast, and electronic)
  • Police accident report and photos
  • Probate court file
  • Reports that must be submitted to government regulators (e.g., the Occupational Safety and Health Administration (OSHA))
  • Surveillance video of the scene

For accidents involving a vehicle:

  • Department of Motor Vehicles (DMV) driver history
  • DMV vehicle title
  • Storage facility records and photos
  • Tow operator records and photos
  • Vehicle service and maintenance records

For workplace accidents:

  • Equipment and other workplace logs
  • Equipment files and manuals
  • Grievances
  • Personnel files
  • Prior accident reports relating to the area/equipment involved
  • Service and maintenance records for the equipment involved
  • Timecards

Interview Witnesses. Witness interviews can provide some of the most critical evidence in an accident investigation; if not handled carefully, however, they can create the biggest problems for the defense of a personal injury claim. In addition to the claimant, consider interviewing the following:

In general:

  • All people in the area where the accident occurred
  • First responders: police, fire, medical personnel
  • Individual(s) who accompanied the claimant for medical treatment
  • Media at the scene

For workplace accidents:

  • Chain of command individuals
  • Co-workers in the immediate area before and after the accident
  • Co-workers in the immediate area at the time of the accident, including those within earshot
  • Non-employees in the area (e.g., customers, vendors)
  • Support workers (e.g., maintenance, plumbers, contractors) in the area

Tip: In every witness interview, be sure to ask the witness whom else to interview; doing so will help ensure that all potentially knowledgeable individuals are identified.

Consider carefully how to document witness interviews. Written statements pose both benefits and risks. On the positive side, witness statements are credible because they are in the witness’s own words and handwriting. Given at the time of the accident, they document the facts while information is fresh and can effectively refresh the witness’s memory later. On the other hand, witnesses often omit important facts from written statements, or include opinions and speculate about facts.

Once a statement is in writing, it is very difficult to correct if it turns out to be inaccurate. Rather than solicit written statements from all witnesses immediately, the better course is to thoroughly interview the witnesses in person, develop their recollections through detailed questioning, then ask the witness to put it in writing. It will help to give the witness the following guidelines, which the interviewer also should follow when taking notes of the interview:

  • No opinions, theories, or judgments
  • No statements about what the product should have done or what caused the accident
  • Stick to objective facts

Another important consideration is whether to engage legal counsel to conduct witness interviews, as lawyer’s notes likely would be protected by the attorney workproduct doctrine; a nonlawyer’s notes would not. In addition, a lawyer can prepare the witness’s statement as an affidavit to be signed under penalty of perjury, which protects the company in case the witness later retracts or testifies inconsistently with the statement.

Additional witness-interviewing tips:

  • Designate one person, if possible, to conduct all interviews to ensure consistency
  • Develop a generic interview outline in advance, also to ensure consistency
  • Follow up on any hearsay a witness reports to determine its accuracy
  • Have the witness draw the accident scene and note his or her location at particular times
  • Obtain copies of photos, texts, emails, and Internet posts the witness has about the accident
  • With key witnesses, conduct Internet searches for background information

Closure. After all information is gathered and evaluated, the company should develop an accident investigation report. If a cause of the accident can be determined with reasonable certainty, that cause should be stated and explained. If not, the company should note that the cause is undetermined. Once the report is completed, the investigation is closed.

These few tips for conducting accident investigations can help minimize exposure should an accident result in a claim or litigation. Our group offers free customized training on accident investigation best practices tailored to the needs of your company. Just contact us and we would be happy to schedule a training session.