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.
Operators of health and fitness facilities know that claims and incidents are part and parcel of their operations. Thus, it is important that each and every owner create an effective and efficient incident reporting protocol to enable people involved in the defense of claims (the insurance company, investigators and attorneys) to complete the most comprehensive and helpful investigation possible.
How exactly do you do this? The following are some simple steps in creating this plan:
Create an incident report template that can be used to document each and every report that occurs on the premises. Using a template allows the individual preparing the report to concentrate on gathering relevant information, rather than worrying about what should or should not be included in the document. This is especially important since the person will be completing the report after the occurence of an incident, which undoubtedly will be a stressful time.
You should keep in mind that the individual who prepares your incident reports could be asked to testify if the claim turns into a lawsuit. Thus, you want someone who not only feels comfortable dealing with the pressure of creating this important document, but also someone who is familiar with your facility’s policies, procedures and operations. Usually, the designated person will be someone in management or a supervisor. This individual generally will be employed with your facility on a long-term basis, and therefore will be available to testify and to discuss the incident with your insurance company’s investigator and attorneys.
Each report created by your facility needs to include the following information:
You should instruct your designated employee to concentrate on compiling all of the above-referenced information during creation of the report. His or her thoughts or opinions regarding the incident should be omitted from the document.
It is vital that your employee interview the injured party and all witnesses as soon as possible after the incident. This will ensure that the relevant individuals give the most comprehensive accounts of the incident possible and also will allow you to nail down their stories to reduce the chances that they change their recollections of the incident later on during litigation.
Your employee should not only obtain a verbal narrative of the incident from each relevant person but should also attempt to document each person’s location at the time of the incident on the map attachment. In addition, note the location of any relevant equipment involved in the incident on the map and note the equipment’s make, model and serial number.
Do not allow witnesses to write directly on the report itself. Witness statements that are independently prepared (as opposed to summaries of interviews created by investigators or attorneys) are discoverable during litigation. Thus, if your witnesses want to prepare their own statements, they should do so on separate sheets of paper.
Finally, any audiovisual media included in the report may be subject to discovery during litigation. Therefore, use your discretion in deciding whether to include such items in the report.
Generally, an incident report prepared by a facility for the express purpose of being sent to its insurance company, arising from an incident that is likely to lead to litigation, should be protected from discovery. The attorney-client privilege prohibits an opposing party from obtaining copies of documents exchanged between clients and their attorneys or from discovering information about discussions between them.
Also, the law extends the privilege to include discussion and documents exchanged between a party’s insurance company or attorney in defense of a claim. This privilege can apply even if a lawsuit has not yet been filed. However, to maintain the protection provided by the privilege, you must ensure that it is clear on the face of the report that it was created “in anticipation of litigation” and that its contents are intended to assist your insurance company and/or attorney in defense of a claim. Thus, your report template should clearly and specifically indicate that it is being prepared “in anticipation of litigation” and also should refer to the name of the insurance company for which it is being prepared. If you know the identity of your investigator and/or your assigned defense counsel, their names should be included as well.
Of course, you will want to consult with your insurance company and/or attorneys to ascertain the extent of the protection afforded by your state’s attorney-client privilege.
After the report is completed, forward it to your insurance company and keep a clean copy in your files.
The creation of a comprehensive incident report will generally result in a more effective and efficient investigation and defense of any claims filed against your facility. Thus, it is crucial that you do everything possible to ensure that your facility gives its best effort towards this goal.