Donald Ornelas Jr. is an attorney at Agajanian, McFall, Weiss, Tetreault & Crist LLP, a Los Angeles law firm specializing in defending businesses active in the sports, leisure and recreation industries. Ornelas also is a risk management consultant with Sports Risk Control LLC, which creates customized turnkey risk management programs for health clubs and other sports facilities and organizations nationwide. Ornelas is an active member of the World Waterpark Association, the Roller Skating Association, and the International Amusement and Leisure Defense Association. You can reach him at (323) 993-0198 or at don@agajanianlaw.com. You can also visit his firm’s Web site at www.agajanianlaw.com.
The occurrence of incidents at your facility is inevitable. However, you can take many steps to make the investigations of those incidents as effective as possible, which will, in turn, greatly assist your insurance company and, if the case goes to litigation, your attorneys.
1. Compile all of the information relevant to the incident in a report as soon as possible after the incident occurs. The compilation of information relevant to the incident is crucial to your investigation. In fact, it is highly unlikely that you will ever be able to capture all of the relevant information as easily or as comprehensively as you will be able to in a report that is prepared when the incident occurs. Witnesses often will become unavailable or simply unwilling to speak with you or your investigator at a later time. These people also will have less clarity with respect to their recollection of the incident as time passes. Also, you run the risk of the injured party altering his or her version of events for the purposes of posturing their case for litigation if you do not capture their account of the incident at the time it occurs. Further, at the time of the incident, people will be more likely to give you significant information, such as quotes, that will be favorable to your position during litigation.
2. Preserve as much of the incident scene as possible. Preservation of items related to the occurrence of the incident also is vital. For example, if the incident occurred in connection with the failure of a component of a fitness machine, “tag and bag” the defective component and store it in a safe place within your facility so that your attorney and/or investigator can examine it later. Your failure to do so may result in charges of “spoliation of evidence” being brought against you during subsequent litigation, which will damage both your credibility and your attorney’s ability to defend the case. Also, depending on your jurisdiction, spoliation of evidence may result in a separate action being filed against you.
If the incident occurred as the result of some sort of dangerous condition on the premises, such as a pool of water that causes a slip and fall, you may want to take photos of the location, which will preserve the exact condition of that area for future reference. Of course, you will want to consult with your insurance company and/or attorney in this regard for the purposes of determining whether such audiovisual media will be protected by the attorney-client or work-product privileges. They may give you specific advice on how to proceed with this aspect of the investigation.
3. Contact your insurance company and attorney. You should always attempt to contact your insurance company and, if you have one, your attorney after the occurrence of an incident. They will probably give you important instructions on how to proceed with your on-site initial investigation. Follow their directions as they may affect whether or not the fruits of your investigation are protected from discovery should the incident result in a lawsuit. In addition, your insurance policy has a “cooperation” clause, which obligates your facility to do whatever is necessary to facilitate the effective defense of a claim. Adherence to your insurance company’s claims reporting procedures may be construed to be a part of that obligation.
4. Establish an incident investigation procedure. Just as it is important to have an established policy with the generation of incident reports, it is just as significant to have the same sort of standardized procedures that can be implemented each time an incident investigation needs to be completed. You will want to designate either a manager or supervisor to be the person that directs your investigation efforts. Your facility should create a checklist that this individual will follow, step by step, when initiating and completing each and every investigation that is completed at your club. That way, this person is able to focus their efforts on compiling relevant information and doing other things to make sure your investigation is as comprehensive as possible, rather than worrying about the logistics of the investigation. Your facility also should have a procedure that handles the storage and maintenance of all items and documents related to the investigation so that they can be easily accessed by your investigator and attorney at a later date. It is a good idea to maintain a separate hard copy folder and, where possible, a dedicated folder on your facility’s computer system for each and every incident. That way, you can deliver important documents to your insurance company, investigator and attorney quickly by electronic transmission if necessary.
The occurrence of incidents is simply a fact of life around health and fitness clubs. You can make handling these stressful times easier by following the simple steps above.