How to Respond to an Injury

© 2001 Door & Access Systems
Publish Date: Fall 2001
Author: Naomi Angel
Page 46

How to Respond to an Injury

By Naomi Angel, DASMA Legal Counsel

You’ve just been served with a complaint naming your company and one of your service technicians in a lawsuit. The injury occurred a year ago. You never even knew about it. The technician that serviced that door moved away nine months ago.

What have you done to protect yourself from liability? How thorough are your work and product records? What do you do now?

Product liability investigations typically focus on two key areas: 1) facts about what happened, and 2) knowledge of the product and its causative link, if any, to the injury. At the moment of an accident, you cannot be sure who, if anyone, is at fault or who may eventually file a claim.

As soon as possible, a trained company investigator with technical knowledge and familiarity with the job or product should collect information about what happened, how it happened, why it happened, and what should be done to prevent it from happening again. Notify your insurer immediately, but don’t wait for your claims adjuster or agent to make the initial investigation.

Sometimes, as in the scenario above, the incident will have occurred long before you learn of it. If so, work with your attorney to gather information and documents about the location and product. It may have been repaired or taken out of service without your ever having an opportunity to inspect the site. In those situations, your records and your business practices policy will be even more critical.

What’s the Right Thing To Do?

• Inspect the site and product as soon as possible.
• Preserve any physical evidence.
• Note the prevailing conditions—weather, condition of the equipment and environment, maintenance of the premises, correctness of the equipment for the application, etc.
• Take photographs, measurements, and sketches. Look for appropriate labeling and optional safety devices.
• Interview persons involved and witnesses, if possible. Get home and work phone numbers and names.
• Show human concern. Much time and expense can often be avoided by simply calling and saying, "I’m sorry this happened." That’s not admitting fault. It’s just showing concern. Depending on the nature of the injury, you may even decide to offer reimbursement for reasonable, documented medical expenses to settle the matter quickly. Consult with your attorney as to appropriate strategies and releases for such situations.
• File a report with your supervisor as soon as possible, even if you think a claim may not be made.

Consider These Questions

• Did malfunctioning equipment or a hazardous condition contribute to the accident?
• Did the location or position of the equipment, or the user of the equipment, contribute to the accident? Note the location, space, time of day, ventilation, temperature, wind, noise, vibration, and other relevant factors.
• Was a ‘Do It Yourselfer’ involved in any adjustment?
• Should any specialized tools or personal protective equipment have been used?
• Did the work ticket adequately identify and describe the problem and the corrective procedures taken? Did those corrective procedures contribute to the accident?

Necessities in the Investigation Tool Kit

• Identification and authority to investigate
• Report form/ computer template
• Photographic equipment – Polaroid or video camera, with film
• Recording equipment – pen, pencil, paper, marker, tape recorder
• Measuring equipment, labels, and tags
• Specialized equipment, as needed
• Container to carry the above

What Never To Do

Admissions: Don’t admit fault or liability. That can only be determined after an investigation of the facts and laws.

False assurances: Don’t make statements about things you do not know or control, such as, "Don’t worry, we’ll take care of your medical bills," or, "The manufacturer will give you a new one." Don’t make promises that you can’t keep.

Delay: Don’t delay reporting the incident, and supply additional information as soon as possible.

Statements: Don’t give statements or share opinions to unknown or unauthorized persons. You may also want to instruct your employees not to talk to friends or strangers about claims. This includes investigators, attorneys, experts, and the media.

Naomi Angel (angel@mbc.com) is DASMA’s legal counsel. She is experienced in product liability issues at the Chicago law firm of McBride Baker & Coles.