October 2002
Despite all of your careful planning, preparation, and prevention techniques, guests can still be seriously injured on your property. Due to the explosion of litigation and the large jury awards that can result, owners and operators of hospitality facilities have spent great amounts of time, energy, and money to implement training and procedures that will reduce accidents. However, when accidents do occur, you must be prepared to act in a way that serves the best interest of both your operation and the injured party.

In his book Accident Prevention for Hotels, Motels, and Restaurants, author Robert L. Kohr states that the first fifteen minutes following an accident are "critical" in eliminating or greatly limiting your legal liability. He is correct. It is your job to know what to do, and just as importantly, what not to do, during this critical time period.

The moments following an accident are often confusing and tense. For a manager, they will demand excellent decision making skills. The following steps describe how control people (owners, managers, and supervisors) should react during this crucial time period. Remember, the objective is to act in such a way as to protect both the business and the accident victim. The following steps will help you accomplish both.

Responding to an Accident

Step 1. DO CALL 911.
First and foremost, get qualified, professional help and assistance. Do not leave it to the discretion of an untrained person to determine whether or not an injury requires professional medical treatment. Do not allow the delay of a decision making process to create a greater chance of liability. Call 911.

Step 2. DO ATTEND TO THE INJURED PARTY.
Let the injured party know that you have requested emergency assistance. Try to make them as comfortable as possible. If you have certified care providers on your staff, allow them to administer appropriate aid. Restrict the movement of the injured party as much as possible unless the injury makes immediate movement necessary.

Step 3. DO BE SENSITIVE AND SINCERE.
Do not treat the injured person as a potential liability claim. If you do, you will probably end up with one. In discussions with many injured patrons who later filed lawsuits, it was found that a significant reason for making their claim was the insensitive treatment exhibited by the establishment after the accident occurred. You need to treat the injured party with sensitivity, sincerity, and concern.

Step 4. DO NOT APOLOGIZE FOR THE ACCIDENT.
Sensitivity, sincerity, and concern does not mean that you are responsible for the accident. Besides, until the investigation is completed, you do not know if an apology by you for the accident is appropriate.

Step 5. DO NOT ADMIT THAT YOU OR YOUR EMPLOYEES WERE AT FAULT. DO NOT TAKE RESPONSIBILITY FOR THE ACCIDENT.
Statements such as these right after an accident are often made based on first impressions, without knowing all of the facts. However, making such statements may have a profound impact on the injured party, as well as a judge or jury, who may perceive them to be a credible admission of guilt or liability. Even when the circumstances surrounding an incident seem glaringly obvious, refrain from admitting fault or responsibility right away. There is no reason to discuss liability, negligence, or responsibility at this time. The focus needs to be on the guest's injuries, and not on the cause of the accident.

Step 6. DO NOT OFFER TO PAY FOR THE MEDICAL EXPENSES OF THE INJURED PARTY.
By offering or promising to pay for medical expenses, the control person is possibly entering into a contractual arrangement with the injured party or the medical provider to pay for the cost of treatment. This contract might be enforceable even if the outcome of the accident investigation shows that the hospitality operation was not at fault. In minor injury situations, you can offer to call a particular doctor or treatment center for the injured party, but allow them to choose the provider. In very limited circumstances, you might want to agree to pay for the initial treatment only, but specify your position in writing with the medical provider.

Step 7. DO NOT MENTION INSURANCE COVERAGE.
Fortunately, most hospitality operations have insurance for many types of accidents and injuries that occur on their premises. Unfortunately, the fact that an operator has insurance will sometimes instill dollar signs into the eyes of the injured party. Psychologically, it is much easier to pursue a big, cold, indifferent, and unfamiliar insurance company than it is to pursue a very warm, concerned, and well meaning hospitality manager.

Step 8. DO NOT DISCUSS THE CAUSE OF THE ACCIDENT.
Discussing the cause of the accident with the injured party is a no-win situation. If the injured party argues or implies that the hospitality operation is at fault for the accident, and the control person agrees, fault has been admitted. If the control person disagrees, it will only create ill feelings and exacerbate the situation. Remaining silent is not an admission of liability and is preferable to arguing with the injured party. Another alternative is for the control person to reassure the injured party that they will conduct a complete investigation and will be happy to discuss the circumstances upon its completion.

Step 9. DO NOT CORRECT EMPLOYEES AT THE SCENE.
This immediate reaction can have a very serious negative impact in the future. The reprimanding of employees is sometimes interpreted by the injured party that a mistake was made or the operation caused the accident. Control people need to remember that they cannot change what has already occurred. They can only hope to positively influence the future decision making process of the injured party. This can best be accomplished by focusing on the injured party and not on the operation. There will be plenty of time to assess each individual employee's performance and take appropriate corrective action if it is warranted after the investigation has been completed.

Step 10. DO A COMPLETE AND THOROUGH INVESTIGATION.
Although it will take a great deal longer than fifteen minutes, a significant amount of the information for a thorough investigation needs to be gathered immediately after the accident. If other guests saw the accident, request that they write down what they saw. Ask them to sign and date their statement, and to leave their address and phone number in case you need to contact them in the future. It may take years for a claim to be resolved. Attorneys and investigators will need to be able to locate the people who gave statements. An incident report, such as the one shown in Figure 9.2, can be used to help gather such information. Remember, evidence wins lawsuits, and the more evidence and documentation you have, the better your chances will be for a favorable ruling, or one that minimizes the amount of damages you will have to pay.

It is also important to have your employees fill out and sign a written report. Employees may change jobs, voluntarily leave, or be terminated from an operation before an accident claim is resolved. Depending on why they left, employees' perceptions of an accident, or the events leading up to it, may change over time, along with their overall perception of the operation and its owners and supervisors. It is not unusual for an employee who first recounted a positive rendition of the events from the employer's perspective, if he or she is terminated, to suddenly recall information that would make the employer look negligent in the eyes of an attorney or judge.

Step 11. DO COMPLETE A CLAIM REPORT AND SUBMIT IT TO YOUR INSURANCE COMPANY IMMEDIATELY.
Most insurance policies require prompt notification of any and all potential claims if they are to provide coverage under the policy. The reason for this is that insurance companies want their experts to become involved in the investigation as early as possible. Your failure to report the claim could cause the claim to be excluded from coverage.

Step 12. DO NOT DISCUSS THE CIRCUMSTANCES SURROUNDING THE ACCIDENT OR THE INVESTIGATION WITH ANYONE EXCEPT THOSE WHO ABSOLUTELY NEED TO KNOW.
Conversations and opinions given to employees, or even people not associated with the business, can come back to haunt you. Restrict your conversations to the hospitality operation's attorneys or authorized representatives of the insurance company.

Step 13. DO NOT THROW AWAY RECORDS, STATEMENTS, OR OTHER EVIDENCE UNTIL THE CASE IS FINALIZED.
Cases can be resolved in several different ways: the claim could be settled prior to trial; the case could be tried in court and decided, or perhaps appealed until all avenues for appeal are exhausted; sometimes a potential injury claim may not be filed as a lawsuit right away, but the case will not be considered closed until the statute of limitations for filing a lawsuit runs out (ordinarily two years from the date of injury in a personal injury claim). If you are not absolutely certain whether or not a claim has been finalized, check with your operation's attorney or the insurance company, and request a letter of consent to destroy the evidence.

As you can see, it is imperative that control people take charge of the scene immediately after an accident occurs. They should be the only ones talking to the injured party, and they need to be prepared to react and think quickly under pressure. Role-playing is a great way to train people to respond appropriately if an accident or emergency situation arises.

Hospitality operations must continue to undertake serious prevention efforts, but they should also be prepared for reality: accidents do happen, and the first few minutes after an accident can be a crucial step in minimizing the negative impact of a potential claim.

Stephen Barth is an attorney and associate professor of law and leadership at the Conrad N. Hilton College of Hotel & Restaurant Management at the University of Houston. For more information visit www.HospitalityLawyer.com. Stephen can be contacted at (713) 963-8800 or via email at [email protected].

	Anatomy of a Personal Injury Lawsuit
	Career Archives