Dodging Liability: Strategies for avoiding costly and consuming injury claims
By Amanda J. Podlucky, Marshall Dennehey Warner Coleman & Goggin
High-quality products at competitive prices, promotional offers and exceptional customer service are likely among the top priorities for any retailer or restaurateur. What is not typically on the list is utilizing company resources to defend against premises liability claims.
Potential claims and lawsuits can hinder business operations and shift focus away from a company’s objectives. Avoiding costly litigation can be simple, yet many companies fail to implement policies that will save time and resources when faced with a claim.
The following four crucial steps will help alleviate headaches associated with premises liability claims:
Implement Risk Management Policies
Liability claims can arise in many ways, caused by everything from wet floors to debris in walkways to falling merchandise. Stores and restaurants should, at a minimum, have basic policies in place to keep entryways clean and dry, place mats in areas likely to get wet, and conduct periodic inspections throughout the premises.
It is also important to look at potentially dangerous conditions specific to your business. For example, a large home-improvement retailer may need to implement policies aimed at larger merchandise, such as providing assistance in lifting and carrying items or ensuring that heavier merchandise is displayed lower to the ground. Grocery retailers should focus on quickly identifying and cleaning spills, and restaurateurs should be diligent in cleaning walkways due to grease or spills.
Identifying possible causes of injury should be a careful process, and because some threats to customer safety may be hard to predict, it is important to periodically review and update risk management policies to reflect ongoing and newly identified problems that could cause injuries.
Educate … And Re-Educate
Simply having company-wide policies and procedures in place is not enough. Once policies are carefully drafted, employees should be educated. This should go beyond providing employees with a manual or showing instructional videos during orientation. Educating employees on the importance of policies should be an ongoing process, such as conducting routine meetings to address safety concerns and reinforce policies.
When defending against injury claims, the focus is typically on reasonableness of the company’s actions. Being able to show employees were properly trained, and providing the claimant or their attorney with a list of safety meetings held in the weeks or months leading up to the date of the incident helps support a reasonableness defense.
Follow the Rules
Once policies are in place and employees are properly informed, it is important to enforce and apply the policies regularly. If policies dictate that inspections be done throughout the day, ensure they are done. If the premises is to be swept or mopped at certain times or certain cleaning products used, these directives should be followed. Supervisors should ensure that employees are aware of their responsibilities and adhering to applicable policies.
One of the most damaging aspects to the defense of any premises liability claim is a claimant’s demonstration that a company violated its own policies. Claims that otherwise have strong defenses can become an uphill battle once the claimant can establish that policies in place were not followed.
Document! Document! Document!
Even when businesses follow the rules, incidents will still likely occur. These occurrences do not necessarily mean policies are inadequate, as tort laws typically require "reasonableness," not absolute perfection. Documenting the steps taken before and after an incident, as well as details concerning the incident itself, become essential in demonstrating reasonableness.
As opposed to a "mom and pop" shop, national companies have hundreds (or thousands) of employees at various locations with varying job duties. The home office may be hundreds of miles away from the location where an incident occurs. Because there will often be multiple policies and employees involved, it is important to have a specific process, consistent across the organization, for investigating incidents, gathering information and maintaining a comprehensive file for any incident.
It is good practice to have a manager or supervisor create an incident report, documenting the location and nature of the incident and any claimed injuries, and a list of employees and witnesses present. Supervisors should be trained on completing incident reports in accordance with company policies and blank report forms should be available at all times. Separate from the incident report, the involved person (if he or she is able) and any witnesses should be required to complete statements, and contact information should be taken. This helps to prevent a claimant from changing their account of the incident, and protects against lost evidence. Creating incident reports separate from written statements also helps preserve work-product privileges in the event of litigation.
A digital or disposable camera should be available for employees after an incident is reported. Documenting a condition, or lack thereof, is important in defending against a claim. All reports, statements and photographs should be kept together for up to five years, or shorter, depending on a state’s specific statute of limitations. Each location’s general manager should be aware of the company’s policy on where to store such information, either by submitting the entire file to risk management, or maintaining it in-store. The bigger the company, the more potential for relevant documents and information to get lost or separated, which could become detrimental to the defense of a claim down the road. It is not uncommon for claims or lawsuits to be raised years after an incident, and preventing the need for back-tracking will save time and resources.
With the ease and capability to maintain electronic files, there should be little concern over having the space to keep employee files, records of safety meetings and incident files. Retaining these documents will ensure pertinent information is available to defend against any injury claims that may arise.
Following the above guidelines will help to both prevent and defend against liability claims that arise. Well-implemented and documented policies can shorten the lifespan of a claim and assist claims professionals and defense attorneys with sufficient information to defend the matter with little disruption to your business. While every company must tailor these steps to conform with their objectives, utilizing them will help keep your company out of the court room and focused on business as usual.
Amanda J. Podlucky is an attorney in the Orlando office of Marshall Dennehey Warner Coleman & Goggin, a leading civil defense litigation law firm. A member of the firm’s casualty department, she represents hotels, restaurants, retailers, recreational facilities and other hospitality industry clients in the defense of personal injury, negligent security and related general liability claims. She may be contacted at [email protected].
Estée Lauder taps new VP, corporate global communications
The Estée Lauder Companies have named Christopher C. Giglio as VP, corporate global communications. He will report to Alexandra C. Trower, EVP, global communications.
Giglio will play a key role in ensuring proactive, globally aligned and locally relevant corporate communications, including media relations, internal and external communications, and executive communications for the Estée Lauder Companies. Additionally, he will join Trower as a close partner with investor relations to help drive strategic financial communications, and liaise with the brand communications teams to help strengthen the company’s corporate reputation.
“Chris brings a unique balance of global business acumen and communications expertise. I am thrilled to welcome him to our company. With his proven leadership in strategic communications and reputation management, he will play a key role in delivering the company’s long-term growth strategy by elevating and protecting the reputation of The Estée Lauder Companies and its portfolio of prestige beauty brands globally,” said Trower.
“I am excited and honored to join the Estée Lauder Companies — a company known for its rich history and strong values, and a leader in the prestige beauty industry. I look forward to working with the talented global communications team and the business leaders across the company as well as fostering even greater communications opportunities and efforts to further benefit the company,” said Giglio.
Giglio has more than 25 years of experience, most recently serving as EVP of the corporate and crisis communications practice at HL Group, a marketing and communications firm servicing corporate, consumer, fashion and lifestyle clients. During his tenure with HL Group, Giglio provided strategic executive and corporate positioning for its clients and established the firm’s crisis communications practice while significantly growing the firm’s client base globally.
Prior to joining HL Group, Giglio held senior positions in the fields of crisis management, journalism and communications. He was a director at Kroll Associates, the leading crisis management and investigations firm, working with teams that provided their diverse client base with complex strategies and business intelligence. During his time at Kroll he was based in Hong Kong for several years and worked extensively in the Middle East. He left Kroll to join NBC News, and became an investigative producer on the prime-time news magazine, “Dateline.” At NBC he specialized in investigative stories, breaking news, and political reporting. Following his tenure at NBC, he joined Rubenstein Associates, and worked closely with the firm’s founder, Howard Rubenstein, advising attorneys, executives, and high profile individuals on media relations, corporate positioning and issues management.
Kodak appoints new SVP, director of sales strategy and operations
Eastman Kodak Company has named Eric-Yves Mahe as SVP and director of sales strategy and operations. The board of directors also has elected Mahe a corporate officer of Kodak, making him a member of the company’s executive council.
In this newly created role, Mahe will be responsible for formulating a strategy to drive and measure sales of Kodak’s portfolio of hardware, consumables, software and services. Mahe also will advise Kodak’s senior management team on software, OEM partnerships and the sale of complex solutions.
“With more than 25 years’ experience in technology, software and services, Eric has an outstanding track record of building successful teams, leveraging direct and indirect sales models, delivering strong business results and winning market share,” said CEO Jeff Clarke. “Eric brings to Kodak extensive experience and competitive advantage in the information technology and global imaging industries, having successfully built international account relationships and several businesses in developed and developing economies in Europe, the U.S. and many parts of Asia.”
Prior to joining Kodak, Mahe was based in Singapore with Pitney Bowes, most recently as president, global growth markets, with responsibility for the company’s operations in Latin America, Asia Pacific, Middle East, Africa and emerging markets. Mahe managed this innovation-centered business from inception, and in two years, it became Pitney Bowes’s best performing operation worldwide. Mahe joined Pitney Bowes in 2007 as president, Asia Pacific, Middle East and Africa.
Previously, Mahe was VP and GM of Asia North for Computer Associates, with responsibility for business operations and enterprise sales in China, Hong Kong and Taiwan. He also has held sales management positions with Sun Microsystems, where he focused on OEM partnerships; Siemens Nixdorf; and Xerox.
Mahe earned his M.B.A. in marketing and international trade from Ecole Superieure de Commerce et d’Administration des Enterprises (ESCAE) in Bretagne, France, in 1986.