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If It's Not Written, It Didn't Happen

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Retail, Hospitality, and Entertainment Facilities Liability - Winter 2019/2020 Newsletter
December 2019

Many of us know the old adage – “If it’s not written, it didn’t happen.” This saying rings true across many types of litigation, but it could not be more pertinent to premises liability claims – and it cuts both ways when it comes to incident reports. 

If a plaintiff does not ensure that an incident report is prepared by the defendant soon after the incident occurs, and there is no other evidence that it did occur (such as surveillance video), he or she could be accused of fabricating the incident altogether.  This creates an uphill battle for a plaintiff that could have otherwise been a non-issue.

A premises owner/operator, however, risks much more than a plaintiff when an incident report is not prepared.  The lack of an incident report results in a loss of real time evidence. It also opens a question about a premises owner/operator’s concern regarding the incident.  The best practice is to have a policy requiring incident reports, even if the customer says he/she is fine and unhurt and even when it appears clear that the premises owner/operator could not possibly be at fault.

Incident reports take different forms across organizations, but there are certain areas that all templates should encompass, as follows:

  • Customer’s name and contact information;
  • Incident date, time, and specific location;
  • A description of the incident written by the customer and signed by him/her;
  • Eye witness names and contact information;
  • A list of employees who attended to the customer and were involved in the preparation of the incident report;
  • Complaints/injuries that the customer reports.

In addition, premises owners/operators should consider the following incident report policies:

  • Incident reports should be completed by management. This ensures that management is timely notified of an incident. This also assists in evidence preservation, because managerial positions do not tend to turnover often;
  • All employees and witnesses (if possible) with direct knowledge of the incident should prepare written statements of what they observed, not of their opinions;
  • Surveillance video of the incident, if any, should be saved;
  • Photographs of the incident location should be taken as close in time to the incident as possible.

Premises owners/operators should keep in mind that, in most circumstances, even if marked “confidential,” incident reports are going to be discoverable because they are prepared in the ordinary course of business.  For this reason, an incident report should not include speculation by the author as to what caused the incident.  Such conjecture is better left unwritten.