LEGAL ISSUES


traveling dump truck, the employee of one trade, hurt by the employee of another trade, could sue claiming you controlled safety or their means and methods of work; the injured person could name you as a defendant, if they believed you personally caused or contributed to the incident. In California, an injured person


can file a lawsuit up to two years post-accident. By that point in time, witnesses may have transferred jobs, quit, been terminated, moved out of the country, or retired. Statements and cooperation may no longer be available to you. Tese people could be critical witnesses who could “make your case,” but they can’t be found. A minor accident suddenly becomes a major headache, draining employee time and resources responding to countless rounds of discovery, or siting for deposi- tions, to assist the legal defense team.


What Companies Can Do To mitigate this fallout, secure


witness statements within 48 hours of the accident. Memories fade quickly and key details will be forgotten, or worse, will change as the “urban legend” surrounding the accident is fabricated by gossip. Ask legal counsel to recommend interview questions for both the injured party and witnesses, so you gather information you will actually care about, come trial. Likely, that one or two page


“Incident Report” some risk manager gave you is utterly deficient to track the key evidence you will wish you had if a lawsuit is filed. Ask legal counsel to help you create a better form. For example, do you always record


whether the “injured” person followed protocol that day, was wearing all appropriate PPE and was in a project location (building, floor, wing, etc.) he/ she was authorized to be, at the time of the incident? Who controlled safety for that worker that day, and what steps had your company taken either to make the area safe, or delegate that responsi- bility to the appropriate trade?


Documenting the Evidence www.AGC-CA.org Even for “minor” accidents, photo-


graph the scene, any equipment and the injured worker. Te smallest detail can make a large difference at trial. For example, a photograph showing a skill saw was being used to cut concrete, instead of a jackhammer, can mollify claims the injured person could not hear warnings or other sounds. A photograph of the impacted body part right after the accident could mitigate claims regarding the force or impact angle. And photographs documenting dimensions of a hole in the ground could prove invaluable for the defense, especially if witnesses later cannot agree what stage the hole was at on the day of the incident. Document the condition of the


evidence. For example, if someone claims a roll of roofing paper fell from two stories above, you’ll wish you photographed and saved that exact roll to show that it was almost bare and weighed far less than the brand-new roll plaintiff claims hit her. Explore legal options for drug and


alcohol testing. Results can be used to help booster credibility and account- ability for your company.


Inspect the Accident Scene Have legal counsel hire an expert


to inspect the accident scene. If they are hired by your lawyer, their work is protected under the attorney work- product privilege. Moreover, experts will gather


evidence you wouldn’t know to gather. For example, if a vehicle is involved (an onsite accident, trucking materials, an employee driving to or from work, etc.), an expert can download critical electronic data to aid in recon- structing the accident. Te vehicle’s electronic data will typically record five seconds before and after a major event, revealing the speed the vehicle was traveling, if brakes were activated, any hard steering motions, and even if passengers were wearing seat belts. Te electronic data shows the delta v forces involved and assists the biomechanical engineer in evaluating the injury and the potential force it had on the body.


If the injured person immediately


returns to work, document the tasks they are able to perform – lifting, walking, bending, climbing. Track details and progress, weekly if not daily. You’d be amazed how many people return to their exact same job, only to file a claim 23 months later, despite having worked full duty the entire time. Recessions or fears of losing work-shifts are strange motivators. If there is a reduced work restriction, is the person complying? Egos often prevent people from limiting their work, but this can have disastrous consequences. Resuming full-duty work can exacerbate what was originally a small problem, and the person now has a claim they never had on the date of the original incident.


Internal Record Keeping Keep an internal record of investiga-


tions by Cal-OSHA or law enforcement personnel. Immediately appeal false information before it becomes historical “fact.” Such reports are often cited by plaintiff lawyers as proving negligence, and thus grounds to file a lawsuit. Conduct social media searches


on the claimant. Maybe the claimant posted about a weekend soccer game with friends, helping a buddy move, or the excitement over a new job with a higher paycheck, which evidence might reduce if not deflect claims for loss of income capacity, or extreme pain and suffering. Consider surveillance or sub rosa if you suspect fraud. Even minor incidents can lead to


expensive litigation; how you handle the initial investigation can make all the difference in facilitating a robust defense. 


Lisa Hsiao is an Associate and Rosemary Nunn is a Partner with the Orange County office of Musick, Peeler & Garrett LLP. Visit the company online: https:// www.musickpeeler.com, or call (714) 668-2400. Nunn also serves as Chair of the AGC of California Legal Advisory Committee.


Associated General Contractors of California 15


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