ACCIDENT INVESTIGATION GUIDELINES WITH LITIGATION IN MIND

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1 ACCIDENT INVESTIGATION GUIDELINES WITH LITIGATION IN MIND Introduction The purpose of this paper is to alert the reader to concepts used in the defense of construction related lawsuits and to suggest how post occurrence accident investigations can best assist in facilitating the defense of claims. The paper looks at third party liability suits like those typically filed by injured workmen, employed by a subcontractor. The first section focuses on the theories under which these claims are pursued, and the second section focuses on investigation of claims to conform to the needs of defense counsel in defending these claims. Pursuit of Third Party Liability Claims In order to establish liability under common law negligence, a plaintiff must establish that a defendant owed the plaintiff a duty of care, that the defendant breached that duty of care, and that the plaintiff was injured as a result of the breach. The types of cases that construction general contractors typically see when defending personal injury suits arising out of construction are those involving injuries to a subcontractor s employee, who in turn files a third party suit against the general contractor for the injuries sustained. Of course suits arise from motor vehicular accidents in construction zones and accidents to the public not associated with a given project, but as a result of activities on a given project. In addition, claims arise from defective design or defective and deficient construction work. This paper doesn t address accident investigations with respect to motor vehicle accidents, accidents to the public at large, or construction defect claims but the suggestions in this paper apply with equal force to those investigations as well. Establishing the Element of Duty in Construction Cases With regards to the allegations involving construction negligence, the general rule in Illinois is that one who employs an independent contractor is not liable for the acts or omissions of the independent contractor. Section 414 of the Restatement reads as follows: One who entrusts work to an independent contractor, but who retains the control of any part of the work, is subject to liability for

2 physical harm to others for whose safety the employer owes a duty to exercise reasonable care, which is caused by his failure to exercise his control with reasonable care. Restatement 2d of Torts 414 (1965). The retained control concept is explained in comment (c) to 414 below: In order for the rule stated in this Section to apply, the employer must have retained at least some degree of control over the manner in which the work is done. It is not enough that he has merely a general right to order the work stopped or resumed, to inspect its progress or to receive reports, to make suggestions or recommendations that need not necessarily be followed, or to prescribe alternations and deviations. Such as general right is usually reserved to employers, but it does not mean that the contractor is controlled as to his methods of work, or as to operative detail. There must be such a retention of a right of supervision that the contractor is not entirely free to do the work in his own way. Section 414 of the Restatement clearly sets forth the exceptions to the general rule of general contractors not being liable for actions of independent contractors. Under these exceptions, an employer of an independent contractor can nevertheless be subject to vicarious liability for the contractor s negligence if the employer retains control over the operative details of the contractor s work. In common parlance, it is referred to as control over the means, methods, techniques, sequences and procedures of the work. Alternatively, even in the absence of such control, an employer may be subject to direct liability where it assumes supervisory duties on a construction project and fails to exercise them with reasonable care or assumes a duty for safety on the project and fails to exercise that duty with reasonable care. In either case, the scope of liability for the employer of an independent contractor is determined by the scope of its undertaking. Moreover, such an employer cannot be held liable unless it knew or had reason to know of the danger to the contractor s workers. The approved Illinois Pattern Jury Instructions for construction negligence cases focus on control of safety in determining whether a defendant was in control for Section 414 purposes. The jury instruction states that a defendant is in control of the work for Section 414 purposes if the defendant exercised control over any aspect of safety on the project. Establishing a Breach of Duty Whether a general contractor/owner/project manager has retained sufficient control to give rise to a duty of reasonable care to a third party is generally a question of fact to be decided by a jury. In the standard construction case, the plaintiff looks to the contract between an owner and a general contractor, and between the general contractor and its subcontractors to establish - 2 -

3 the control necessary to succeed in his negligence cause of action. Many standard construction contracts between an owner and contractor require the contractor to assume complete responsibility for the means, methods, techniques, sequences and procedures of the work on site, and to assume all responsibility for safety of the site. Because the owner/contractor/project manager typically has the right to inspect for safety and contract compliance, and has the authority to reject non-conforming work, stop unsafe practices and procedures, etc. it is not difficult for a plaintiff s attorney to contend that the contractor controls the site and safety on site sufficiently to subject it to a jury trial on liability for injuries to subcontractor employees. As of late, plaintiffs attorneys have learned from the myriad pro-defense court opinions granting defendants summary judgment in construction 414 cases. In an effort to find control over means, methods, techniques, sequences and procedures, plaintiffs counsel are delving into the contract specifications in an effort to establish the specifications controlled the work of the subcontractor to such an extent that they were not free to perform in the work in their own way. In order to establish a breach of duty, it is typical for plaintiff s attorneys to rely upon expert testimony. Again, most contracts include within the four corners of the contract the requirement that all OSHA rules and similar state and federal laws be followed with respect to the project. There are numerous experts who are intimately familiar with OSHA and who will contend that one act or another in the field was a violation of OSHA, and thus showed a failure to comply with one s contractual obligations, and in fact constituted a breach of the standard of care applicable in the field. When a plaintiff falls off a ladder, has material or equipment dropped on them, is placed in awkward position resulting in a strained limb or a fall, where housekeeping results in tripping and slipping hazards, experts will typically find an OSHA violation as evidence of a breach of the standard of care. Therefore, one can expect that in most litigated matters there is going to be an exchange of expert testimony, both for and against, the plaintiff and defendant cases. Establishing Proximate Cause Whether or not one s conduct proximately caused an injury is usually a question of fact for a jury to decide. The proximate cause argument rarely lends itself to a dispositive motion for the defendants. However, there are situations where the facts of the case will allow one to attack the viability of the negligence claim based upon the failure to establish a proximate relation between the defendant s conduct and the plaintiff s injury. One such example is where the general contractor controls the sequencing of the work (scheduling) but sequencing or scheduling played no role in the accident and therefore was not a proximate cause of the accident. ACCIDENT INVESTIGATION IN THE LEGAL CONTEXT Given the foregoing, post accident investigations should focus on much more that simply finding out what happened. They should be conducted with liability in mind, and to diffuse the likelihood that a plaintiff s attorney will be able to establish that the general contractor controlled the injured employee s employer s means, methods, techniques, sequences or procedures or that the incident was a result of the contractors failure to supervise the work or safety. Obtaining statements from the injured person s coworkers, supervisors or witnesses as to the means, methods, techniques, sequences or procedures can be useful in defending the vicarious liability - 3 -

4 claim. Also, obtaining statements from these same individuals can also be useful to defend a claim based upon the assertion that the general contractor failed to exercise appropriate care and caution of the conduct of another. Gathering evidence supporting compliance with applicable specifications, or conversely, evidencing the fact that despite continuous and ongoing presence on site the general contractor had no knowledge of noncompliance, can also overcome assertions to the contrary. TAKING STATEMENTS THAT MEAN SOMETHING When investigating an accident you must consider the direct, indirect and contributing causes of the accident. Accidents are rarely caused by one single factor but are more often the combination of several events or coincidences. For instance in a fall from a ladder, the investigation that reveals that plaintiff fell from the ladder is basically useless. Finding out where the ladder came from, whether it was properly erected, whether it was OSHA approved, whether the surface on which it was positioned was suitable, how long the activity took place that resulted in the injury, who knew the injured person was doing this job, whether anyone knew this activity was taking place, whether there were safe alternative methods available (i.e. lifts, scaffolds) and whether plaintiff ever asked for a different device, and whether there were coworkers available that could have helped the plaintiff to limit his exposure are all important questions that need to be asked and answered at the time of the occurrence to best establish defenses to future litigation. TALK TO MORE THAN JUST THE EYE WITNESSES As you can see from above, there are many people that could provide information relative to the accident other than someone that witnessed it. Get to the people that can answer the who, what, where, why and how s, set forth above and your defense counsel will have a much better idea about the cause of the accident and the possible defenses than he would with a statement that simply asked the eye witnesses what happened? or what did you see? By the time these cases come to suit, a plaintiff s attorney will try to establish the measure and degree of control that the general contractor defendant had over the work, through its on-site superintendents, inspectors or project engineers, that makes them accountable for the accident. It is not uncommon for one of plaintiff s co-workers to testify that there was a constant presence of the general contractor/superintendent in the field, and that the superintendents had the right to control the workers conduct or to correct the unsafe act that led to the accident. A statement establishing the testimony of the workmen in the field that the general contractor did not control the incidental aspects of the work, i.e., the operative detail, or method of the work out of which the accident occurred, would help limit exposure under the Restatement set forth above. Asking the right people the right questions can help the defense in anticipated litigation in the future. Another important and useful admission to obtain is to establish that the general contractor neither knew nor should have known that the unsafe activity was occurring. Finding out where the on site representatives were and what they were doing at the time of an accident is important. Establishing from a coworker or employer the fact that the general contractor had no - 4 -

5 notice of the events out of which the accident took place, and establishing a time line that shows that the whole process, from ladder erection to fall, took only minutes or seconds, is another good way of insulating a potential defendant from fault. TAKE PICTURES THAT MEAN SOMETHING It is important to take photos of an unaltered accident scene. Too often the post accident photos are taken later, after safety revisions have been made, which rather than assist in the defense, explains perfectly to a plaintiff s lawyer how the scene should have looked at the time of the incident had it been safe. If the scene has been altered or modified in some way before one has a chance to photograph the scene, document who changed it and how it was altered. Again thinking about the above theories of liability can help dictate the pictures to be taken to document the defense, not just the scene. The type(s) of photo(s) taken depends in large part on the type of incident involved. For instance, photos in a trip and fall on debris should focus not solely on the debris but on the general area where the debris is located so as not to amplify the debris itself. GET YOUR PAPERWORK TOGETHER In all cases contracts are at issue, daily logs are important, specifications and standards are important, safety reports and form 45 s are important, progress photos are important, tool box meeting minutes are important, job hazard analysis are important, and project inspection reports are important. Police reports and investigations, and accident photographs are always important. Get those types of materials together so they can be easy gathered when the matter goes into litigation. GATHERING AND MAINTAINING EVIDENCE SPOLIATION OF EVIDENCE Typically one who has control of evidence has a duty to maintain it if it can be reasonably anticipated that the evidence would likely be important to future litigation. A broken ladder, a defective product or piece of equipment involved in an accident should be secured. One who takes control of such equipment who allows it to be damaged, discarded or lost can be sued for spoliation of evidence. If the material or equipment is owned by others, and cannot be controlled, it should be documented and photographed as well as possible to preserve as much information as possible from the initial investigation. Counsel can send letters to the entity owning/controlling the pertinent material or equipment to make sure those entities are put on notice of the need to preserve the evidence. CONCLUSION Knowing the law that exposes you to liability is important to understanding the significance and focus of your post accident investigations. The outline above suggests some of those things that are useful to defense counsel in defending claims that result in suits down the road. While not exhaustive, proper investigation can protect you in litigation in the future

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