Retail and hospitality premises claims are in many ways shaped long before suit is filed. The facts most likely to aid in evaluating and defending liability, causation, damages, and compromise value may exist only briefly: surveillance footage and other data may be overwritten or automatically deleted, employees may leave, physical conditions may be repaired or altered during renovation, and witnesses’ memories are likely to fade. For that reason, early investigation is a key to mounting a successful defense. Three critical components of early investigation are: 1. Prompt investigation and preservation of incident and scene evidence; 2. investigation of the claimant’s alleged injuries and damages; and 3. early expert retention to aid in investigation and evaluation.
1. Preservation of Incident and Scene Evidence
One of the primary questions in premises cases is what each party knew or should have known about the condition at issue, including its existence. Therefore, the first component, immediate investigation efforts should focus on obtaining and preserving evidence including incident reports, personnel statements, witness statements, 911 and first-responder reports, ambulance trip reports, surveillance footage, cell phone footage, and photographs of and regarding any individual involved with or witnessing the incident. Additionally, any inspection logs, maintenance records, and any other similar premises owner/operator materials for the date in question should likewise be captured and preserved.
Statements
Identifying personnel present on the premises at the time of the incident is critical. For the identified personnel, immediately obtaining and preserving work schedules, time records, and contact information including personal cell phone number(s), email address(es), mailing address, and an emergency contact’s information. From these identified personnel, collect recorded interviews and/or written statements concerning the alleged incident including the condition of the area before and after the incident as well as statements regarding procedure compliance (e.g. inspections, walkthroughs, posted warnings, etc.).
If the claimant and/or their companion(s) decline to provide a statement at the scene, personnel should document objective identifying and situational details that may later assist with investigation, such as clothing, footwear, accessories, assistive devices, and the person’s location and activities before and after the incident.
Attaining details including any knowledge of, previous interactions with, or sightings of the claimant or their companions whether on the same day of the incident or previous dates, important to a thorough investigation.
Photos/Video footage/Visual materials
If the premises are equipped with cameras, it is often CRITICAL that ALL footage from ALL cameras for the entire 24 hours before and after the incident be preserved promptly. Retaining footage from the prior day or days may also be useful. This is particularly the case where the claimant was a patron previously whether or not for consecutive days. Comprehensive photographs of the incident area should be taken before demolition, repairs, cleaning, rearrangement, or replacement work alters the condition of the area. For example, if there was an object that was overturned or displaced from its usual position in the incident, whether or not known to have been involved in the incident, it is vital to take photographs before righting or replacing the object.
To the extent that they are generated as part of operating the premises, inspection logs, sweep sheets, walkthrough logs, maintenance records, and similar records should be retained for the day of the incident and through 30 days prior to the incident, if possible. Additionally, contracts with third parties such as cleaners, security, landscapers, maintenance, or other third-party vendors should be obtained and preserved. Schematics, drawings, maps, layouts, and blueprints should also be retained and preserved.
The key point is simple: preservation and documentation should occur contemporaneously with the incident. Else, through the nature of life, memory fades, media and documents may become misplaced, lost, changed, or overwritten, and the condition of the incident scene will change.
Photos of Incident Scene
Personnel should take photos of exactly where the alleged incident occurred showing conditions as they appeared moments after the incident. If possible, take photographs from all sides (from the perspective as though you were drawing a circle around the area) not just the direct impact area. Captured photographs should strive to include any measurements, any posted signage, warnings, or rules and document lighting and weather conditions. Taking photographs and video from multiple angles and distances is likewise useful as perspective will vary. If possible, photograph the claimant clothing, shoes, items they were holding, glasses, hat, and accessories. Photograph and video documentation is an instance where more is more as it can be sifted later.
Budget-conscious resources should also be used as supplements. While these tools cannot replace direct scene documentation, they offer additional information, often including historical documentation that may provide useful. Satellite imagery, street-view tools, historic weather information, and publicly available governmental records may provide context about exterior conditions, traffic patterns, lighting, weather, or other conditions. When law enforcement or emergency personnel respond, body camera footage, dispatch records, 911 audio, photographs, and related materials may be available through public records or freedom-of-information requests, subject to applicable state law. Early investigation should include using open records procedures to obtain the audio-visual media as well as any related written documentation.
Preservation obligations apply likewise to claimants and their companions. It is recommended to send a letter seeking that claimant preserve their documents and media that may be related to the incident including photographs, videos, communications, wearable-device data, smartphone/cellphone data, footwear, clothing, accessories, and other physical or electronic evidence from the time of the incident.
2. Claimant Injury and Damages Investigation
The second component of early investigation is specific to the claimant, with the intention of gaining information regarding the alleged injury and the claimed damages alleged to be flowing therefrom. Investigation should seek to identify prior claims, criminal background, and prior accidents/incidents through public record requests and other investigative tools. Investigative tools include public/open record requests to law enforcement and other first responders, emergency call centers, and motor vehicle record keepers for records related to other accidents or incidents involving the claimant. Obtaining cell phone records, including calls and messaging for the date of the incident and 24 hours prior should also be a priority. These records can identify whether claimant is a “frequent flyer” with a history of claims or similar incidents or injuries, all of which may be used to leverage defenses.
As mentioned above, statements should be obtained from all identifiable witnesses, including personnel. Along with obtaining statements regarding the accident scene, investigators should document the appearance, mobility, speech, and cognition of the claimant, including gait, deformations, bleeding, cuts, bruises, bleeding, balance, movement speed, pain indicators etc. Conversely, statements should also include when there is no apparent change to appearance, mobility, speech, or cognition.
Moreover, recollections claimant’s communications before and immediately after the incident should be included, as comments made in conversation or while claimant was at the incident scene can indicate opportunism. Video and audio recordings of these communications can be incredibly helpful to defenses as the evidentiary hurdles are fewer.
Publicly accessible information regarding claimant including social media accounts and posts by the claimant may also provide contemporaneous accounts of an incident, the claimant’s pre-incident activities, and the claimant’s post-incident activities. This information may support defenses to ongoing pain and injury claims and other medical conditions claimant puts at issue by bringing a claim. Vendors may be retained that engage in social media investigation and preservation that can accumulate and preserve accessible information.
It is likewise vital to obtain a detailed recoded statement or examination of the claimant under oath. When a claimant’s attorney refuses to allow a pre-suit interview of claimant, then this will be a thorough cross examination of the claimant at deposition once suit is filed. Included in any such examination should be thorough inquiry regarding the mechanics of the alleged incident, claimant’s medical history prior to the alleged injury, and claimant’s medical treatment for the alleged injury. Claimant’s statements/testimony will allow experts to evaluate and provide opinions. Having full information from the claimant also serves as a shield expert opinions from challenges.
Careful questioning on timing, symptoms, activity limitations, prior complaints, intervening events, and treatment decisions may help distinguish injuries caused by the incident from conditions that predated it, arose independently, or perhaps was exacerbated by a subsequent event. General damages claims, such as loss of enjoyment of life or diminished capacity, place claimant’s medical and functional history at issue, which should limit claimant’s counsel’s available objections to a thorough inquiry.
Independently obtained medical records for the claimant are also central to evaluating and defending the claim. Records may yield information a claimant may be reticent to reveal or failed to remember including a history or prior claims that may establish a pattern, a prior accident with similar medical complaints where no claim was made, prior similar medical complaints, pre-existing conditions, intervening events, treatment patterns, and statements made to providers close in time to the incident and prior incidents. Investigators should seek10-20 years of medical history via discovery requests if suit has been filed or a HIPAA-compliant voluntary release signed by claimant.
Lien issues should also be investigated early. Depending on the claimant’s age, payer history, and treatment providers, Medicare, Medicaid, Department of Veterans Affairs, hospital, or provider liens may affect evaluation and resolution. Early identification of potential liens helps prevent surprises during settlement and supports more accurate assessment of claim value.
Further, letters of protection, claimant’s insurance payments, litigation funding arrangements, factoring agreements, and other agreements involving the cost and actual amounts paid for claimant’s medical treatment should also be obtained also to aid in obtaining accurate claim value by evaluating actual cost of the medical treatment a claimant places at issue.
Additional investigation may include targeted surveillance, checks for prior treatment locations, and canvassing of neighbors, co-workers, and other individuals may yield insight valuable to defending the claim(s).
3. Expert Investigation
The third component is expert investigation. Expert involvement should be evaluated not only as a trial issue, but also as an early case-assessment tool. While the expense of retaining experts may at first blush appear great, in the context of the increasingly poor jury climate from a defense perspective, early expert analysis is often useful to resolve a more accurate evaluation of the claim and reduces the chances for later surprise. The most likely suite of experts are medical experts pertinent to the injuries claimed, radiologists where imaging has been performed, and biomechanical and other engineers depending upon the facts of the case.
Variously, as such are available, the decision as to which experts to be retained should be based on Claimant’s own statements regarding the body parts allegedly injured, examination of first responder reports, and examination of claimant’s medical records, including emergency room records. Close attention should be paid to consistency across these records as well as consistency between the records most close in time to the accident as compared to weeks and months later.
Where radiological imaging is obtained, particularly shortly after a claimed incident, expert analysis can be instrumental in showing pre-existing pathology. This becomes even more useful where prior radiological imaging has been performed and highlights the importance of the second component in investigating and doggedly seeking claimant’s prior medical records.
Once medical records have been evaluated, a biomechanical expert may be useful to scientifically test the veracity of the alleged injury claims. In general terms, biomechanical engineering applies physics to human anatomy and physiology to evaluate whether the forces and movements involved in an incident are consistent with the injuries claimed. A biomechanical engineer has completed graduate level work in Newtonian physics, structural and functional human anatomy, human physiology, injury biomechanics and human soft and hard tissue tolerances.
A biomechanical expert in evaluating injury causation will conduct an accident/incident reconstruction to determine what happened to the claimant and then determine whether the accident/incident involved the type of force or motion that would cause the alleged injured body parts to exceed their natural physiological ranges of motion and/or tissue tolerances consistent with the claimed injuries.
In premises cases, including slip-and-fall claims, testimony from a biomechanical engineer who is an effective science communicator can be incredibly persuasive. When presented effectively, the jurors are confronted with scientific proof that they must conclude that the injury could not have resulted from the incident based on the mechanics. This is particularly potent where it is anticipated that jurors may be uncertain regarding causation issues based on the records alone. Disclosure of a retained biomechanical engineer also ais in leveraging claimants’ settlement expectations.
Engineering and human-factors experts may also be important in pedestrian fall cases. Building-code analysis, walkway design, lighting, warnings, inspection practices, and slip-resistance testing may be useful in evaluating defenses. In general terms, pedestrian slip events are often analyzed by considering heel-slip and toe-slip mechanics, the available traction of the walking surface, the footwear involved, and the presence of any contaminant.
The value of expert work depends on methodology as much as conclusion. As such, retaining experts should always have as a prerequisite that the counsel on the claim vet experts prior to recommending them for retention. Vetting should include inquiries tailored to obtain specific assurances that the expert relies on concrete and reliable, peer-reviewed methodology and what facts and information they must be provided to process through that methodology in order to provide a useable opinion. Early retention can aid in ensuring that evidence required for use by the expert is identified and preserved appropriately.
Early investigation aids in counsel being to have a clearer picture of how the claim and case are likely to progress as well as be able to evaluate specific defenses. At the end of the day, to have the best opportunity at defense, evidence should be preserved before it disappears, evidence should be obtained and evaluated as early as possible both by counsel and retained experts. However, there is no blanket approach that will invariably cover the varying circumstances of individual claims. Engaging and involving defense counsel early in the pre-suit investigation process therefore is typically the best course of action for complete evaluation.