It Was An Accident
By Gregg Scharaga
It’s the beginning of camp season and everything is going great—staff members are trained, the campgrounds look and feel safe, and campers are happily exploring every program you have to offer. And then there’s an accident. Whether or not it could have been prevented is no longer relevant; it is now time to kick into investigative mode, which may be important if a lawsuit arises from the incident.
Above everything else, the initial step should be to implement an emergency medical-action plan, depending on the severity of the injury. But once the camper or staff member is medically attended to, it’s time to put on your investigator’s hat. In many ways, the first few hours after an accident are the key to the investigation. While details are still fresh and memories are at their best, it’s time to try to re-create or take a “snapshot” of the accident scene. The better you and camp officials understand what took place, the better it will be for accident prevention in the future, defending a possible lawsuit that arises from the accident, and capturing details that might not seem important at the time but can be in the future.
One of the first things to determine is whether someone witnessed the accident. Having witnesses who can attest to or even be deposed under oath can be invaluable when defending a personal-injury claim. Witnesses can be important when it comes to describing:
The events leading up to an accident
How an accident occurred
Who was involved
The conditions of the accident scene
What took place immediately following the accident.
If staff members or campers are still present at the scene, it is prudent to jot down everyone’s name who claims he or she saw something. While one can get a general sense from witnesses as to what took place, it might be best to interview campers and staff members one on one—in private—within a few hours of the accident. In that way no one else can influence someone else’s recollection; it also prevents a collaborative “cover up.” Keep in mind that timing is of the essence. Once the summer ends, seasonal staff members are no longer employees and might not return the following summer. Therefore, in certain situations, instead of having a staff member write and sign a witness statement, an affidavit might be preferred. An affidavit is a sworn statement signed before a notary, and is generally admissible in court.
Every camp should have a procedure for formally documenting accidents on a pre-printed form to submit to an insurance broker and/or insurance carrier. The report should include the proper time, date, and specific location of the accident. Anything that might be relevant should be noted, such as the weather, the field conditions, the location of the nearest counselor, and the names of witnesses. Always report the incident in a timely fashion to a broker/insurance company regardless of whether an incident is going to become a formal claim or lawsuit.
Is it possible that the accident has been caught on a security camera? If it has, preserve the video and back it up to avoid “spoliation,” which is the negligent or intentional destruction of evidence. If cameras exist but the accident wasn’t captured by them, document that you reviewed the camera footage, that nothing was captured, and there was no need to keep the video.
I often receive litigation files and have no idea what the accident scene looked like because there are no photos taken at or close to the time of the accident. Ask yourself—does the accident scene warrant photos? Was it a giant-sized boulder that the camper or counselor walked right into that’s been there for 30 years? If the accident scene is picture-worthy, break out that camera or cell phone and snap a few photos. If there is a camp photographer on staff, he or she might also be able to assist. Capture the scene and preserve the photos. If nothing else, this may give perspective to someone else in the future—it may be shown to the injured person at his or her deposition, or it can help the insurance carrier or lawyer evaluate the case from a liability standpoint.
Preserving Potential Evidence
As mentioned above, spoliation of evidence can hamper the defense of a lawsuit. For example, let’s say a camper is injured either using some type of exercise or sporting equipment or even tripping over it. The camp becomes aware of the accident and documents it, but at the end of the summer the camp decides to replace all of the sports equipment because they are dated, which might include the piece of equipment that is the subject of the accident. That can become a legal issue because it could be considered negligent or even intentional destruction of evidence. Instead, put whatever is involved aside, and keep it in storage or a safe area.
When the accident involves equipment, conduct a post-accident inspection. Was it in working order? Was it defective? Do you have the instruction or assembly manuals? It is imperative that you keep all manuals. Oftentimes, attorneys ask for them:
Did the camp set it up properly?
Was it missing any parts?
Was it used as recommended and as it was intended?
If it’s something that the camp inspected after the accident and determined it is in proper working order, it is acceptable to put the equipment back into operation. Just ensure though that you can identify the specific equipment at issue, possibly by marking it, noting model numbers, or taking photos.
Begin And Organize A File
After an accident, you might receive paperwork from multiple directions. Keep and preserve everything and create a file, either hard copies or electronic. Organize all of the papers and documents so you can easily retrieve items later. Keep and maintain all medical records, insurance information, police reports, witness information, notes, and any other documentation. Just because an accident doesn’t lead to a lawsuit right away doesn’t mean it won’t appear in the future. Each state has different statutes of limitation that could allow three years or more to bring a negligence lawsuit after an incident. And for children under 18 years of age, a statute of limitations might not even begin until they turn 18. Depending on how old the child was at the time of the accident, the statute of limitations might even permit upwards of 10 to 15 years to commence a lawsuit! Therefore, it is important to keep files for a long period of time.
Maintenance Logs And Records
Ensure you preserve any relevant maintenance records. For example, let’s say an accident occurred on a water slide, and a log book was kept every day when the slide was inspected. Those past inspection records will be very relevant to a potential lawsuit to demonstrate a history of maintenance records or a lack of prior incidents, lack of repairs, or anything relevant to the apparatus itself. If maintenance records can be related to an accident location, make sure to preserve them.
While accidents are a foregone conclusion when you combine kids' unpredictable behavior with the great outdoors, these post-accident investigation measures will alleviate many issues and concerns in the future.
Gregg Scharaga is a Partner at The Chartwell Law Offices (www.chartwelllaw.com) with extensive experience in addressing legal issues that arise in the camp-management industry. Reach him at Gscharaga@chartwelllaw.com.