The ultimate goal of any organization's risk management program is to keep accidents from happening. But when an accident does happen, the actions taken afterward can have a profound effect on the claim and even the outcome of potential litigation. Among these actions is adequately preserving any evidence related to the incident. It's important for everyone in an organization, from leadership to volunteers, to understand what should be maintained and how to preserve it once it's been secured, or the organization could face the additional risk of spoliation of evidence.
What is Spoliation of Evidence?
Evidence spoliation refers to the intentional or negligent destruction or alteration of evidence relevant to the investigation of a claim or litigation. Evidence can be a number of things related to an incident, including:
- Digital information such as electronic records, emails, text messages, digital photos, videos, cellphone recordings, and voice recordings
- Physical records such as maintenance and repair documents, safety inspection checklists, incident reports, and written statements
- Equipment or physical items such as toys, vehicles, railings, rugs, or other items that were involved in the incident
Whether intentional or through negligence, the spoliation of evidence can lead to a number of issues for insureds. It may be more difficult to argue the other party is partially responsible for the accident happening. Claims adjusters may be forced to settle the claim for more than they would have if the evidence was available. If the claim does end up in court, the insured could be sanctioned or the judge could give the jury the choice to consider the missing evidence would have been unfavorable to the insured's case if it had been included. All of these issues and more can add up to a devastating outcome for an organization when they could have been mitigated through the appropriate retention of evidence.
Real-World Examples of Spoliation of Evidence
The following incidents outline how quickly spoliation of evidence can occur if policies and procedures aren't in place to prevent it.
Slip and Fall Case - A customer allegedly slipped and fell on water in an organization's cafe. The case went to trial and the organization lost their case. This was mainly because the video of the incident had been recorded over, leading the judge to advise the jury they could consider the missing video evidence would have been unfavorable to the organization.
Disposal of an Inflatable - A child was injured on an inflatable bounce house. The organization disposed of the bounce house after the notice of the claim. A motion was filed against the organization for sanctions and a partial motion for summary judgement based on destruction of evidence.
Sauna Timer Case - An individual was found unresponsive in a sauna an organization was managing and later passed away. A claim was filed alleging the person had fallen asleep and the timer on the sauna was faulty, leading to his death. The organization had replaced the timer before it could be inspected leading to a multi-million dollar settlement.
Guidance for Retaining Evidence
It can seem daunting when trying to determine what to retain and how to retain it when an accident happens. This is why it's important to review post-accident protocols and be familiar with the requirements. The following are some guidelines to follow to help your organization avoid the pitfalls of spoliation of evidence.
- Incident response policies should include retaining evidence and should be documented and communicated to everyone in the organization. These policies should include instructions on how to complete forms, what items need to be preserved, how to obtain these items such as video, and where these items should be stored.
- Educate yourself about your surveillance system and cameras, including the length of time video recordings are available before they are erased or recorded over and how to obtain copies for the incident file. It is best practice to retain the needed video immediately or as soon as possible and check to make sure the information was copied adequately.
- A claim may not be presented immediately after an incident. Therefore, it is important to preserve any evidence that may give rise to a claim. For example, if an individual slips and falls in your building but declines medical treatment and just wants to leave, an incident report should still be completed. Any video footage of the incident should be preserved, such as on a CD or thumb drive, and kept with the incident report in the event the individual obtains medical treatment and submits a claim later.
- If repairs must be made to damaged equipment, such as a faulty handrail, confer with your agent or claims adjuster before doing so, and then keep all records of the repair, including photos of before and after. Do not dispose of any damaged items or components.
- Physical items involved in the incident should be secured and should not leave the premises.
- All documents should be kept in a central incident file and secured. If there are physical items, such as broken equipment related to the incident, include a documented inventory with descriptions of the items and their location.
- Reach out to your agent, risk management consultant, or claims adjuster for additional advice and guidance if there are any questions or concerns.
Organizations do their best to keep accidents from happening by engaging in risk management and loss control activities. Having comprehensive post-accident protocols can be just as important to mitigating loss as pre-accident procedures.
IMPORTANT NOTICE - The information and suggestions presented by Philadelphia Indemnity Insurance Company in this E-Brochure is for your consideration in your loss prevention efforts. They are not intended to be complete or definitive in identifying all hazards associated with your business, preventing workplace accidents, or complying with any safety related, or other, laws or regulations. You are encouraged to alter them to fit the specific hazards of your business and to have your legal counsel review all of your plans and company policies.