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Be Afraid, be very afraid of pre-printed forms for your recreation business

This form will tell the plaintiff you screwed up!

I love looking at “risk management” paperwork. At a recent conference where I was speaking, I stumbled across this form. The form was titled Accident/Incident Report Form.

Most incident or accident forms are created to track information and to be used to evaluate and correct problems. 99.95% of the time they are used to fill up file cabinets and kill trees. Think about the purpose of these forms as I work through this one.

These forms are created with the belief that they will help. They are created with good intentions.
However, I practice law and try to do so by dealing with the hard realities of how my clients actually run their programs or businesses.

The form is probably used by lots of people because it is easy, pre-printed and solves their problems. It may also be easy to help you lose a lawsuit if you use it. How?

1. Forms prove you have problems two different ways.

A. You have a stack of forms. You have a problem. You have a lot of people getting injured, and you are not doing anything about it. The stack alone proves you run a bad program.
B. If you sort your forms based on activity, location, etc. You have a problem if you have on item, location or activity that has a stack of forms. If your stack of forms identifies a location or activity, and the injured person was at “that location” then you knew of a problem and did nothing to solve it.

2. Forms eliminate foreseeability. Foreseeability is a defense that you could not have known that an accident could occur because it was not foreseeable. Foreseeability is defined, to some extent, as not something you would expect to happen. Here is the definition of foreseeability from the Colorado Jury Instructions.

CJI-Civ. 9.21 FORESEEABILITY LIMITATION
The negligence, if any, of the defendant, is not a cause of any (injuries) (damages) (losses) to the plaintiff, unless the injury to a person in the plaintiff’s situation was a reasonably foreseeable result of that negligence. The specific injury need not have been foreseeable. It is enough if a reasonably careful person, under the same or similar circumstances, would have anticipated that injury to a person in the plaintiff’s situation might result from the defendant’s conduct.

3. Forms indicate you are behind at best and possibly grossly poor in managing the problems of your program because you have a stack of forms. Everyone has incidents, accidents and injuries (unless you are dead). However, keeping track of them is an indication that you have them and do nothing about them in the mind of plaintiffs and possibly juries.

4. Incident forms, just kill trees, they don’t need to be filled out. First the definition of an incident will vary from a program to program and from day to day in one program. The idea that you would track something that did not happen is just odd.

Stupid Human Tricks in Writing

This particular form has additional issues. On page one the form asks the question: “What could the injured have done to prevent the injury.” Never, ever, never ever put opinions down on paper. Only put facts. Opinions are not information, not a way to evaluate. They are the result, and if you did not see the accident your opinion does not count.

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The next issue is a question. After the line for information on where the parents notified there is a question “Parents Response?” What has that got to do with the way you are evaluating the accident or incident? If this is truly a report form, why is the response of a parent on the form? Did you call the parents and ask their response?

If the parent says something that may be of value to you, and there is any possibility of it being introduced at court, write it down on a message to your attorney or risk manager. That may protect the information until it is needed, and it will not show up as part of the report. You do not want to make someone madder when they are reading about what happened to their child and find out what they said on the form.

If the form is truly for gathering information and tracking incidents it does not matter how the parents responded. Besides, how do you expect them to respond? You just called to tell them their child was hurt or worse, and you expect them to be jubilant?

The next “smooth move” on the form is “Person’s notified such as camp owner/sponsor, board of directors, etc.” Why is this on the form? What has this information got to do with incident or accident evaluation?

More importantly how do you think this is going to look when it is provided to the plaintiff’s attorney during discovery? Well, this was bad enough they called the board of directors. Good to know. Alternatively, and even worse, my client has a broken arm, and they did not notify the board of directors?

You should have a plan in place on who to notify if there is a problem. Follow the plan; don’t put it on a form that may come back with a big question. Why did you call those people? Did you know you had screwed up and wanted them to know to prepare for the worse?

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Third great line is “Describe any contact made with/by media regarding the situation.” Answer I wanted the local reporter’s opinion on broken arms at summer camps. What does this matter on a form reporting an incident?

Again the information may need to be something that is recorded but separate the information to the correct form.

It was easier to run around and scream in a panic.

One line asked if “Emergency Procedures followed at the time of an accident. If you write no here, how are you going to explain that? You better write yes and if you are always going to write yes, why have the question on a form?

If procedures were not followed there is usually a great reason why, the procedures did not fit the situation. (They never do.)

Now for the best “line” I’ve seen in decades on paper.

“Insurance Notification” Under that heading it has checked boxes if the following insurance companies were notified. 

Parent’s Insurance
Camp Health Insurance
Worker’s Compensation
Camp Liability Insurance

The first three make sense to me. You want to write down a claim number for the insurance claim when the claim is based on a duty to provide in a personal health insurance policy or a WC policy. However, why in the world would you write on this form that you contacted the Liability Insurance Carrier of the program? Can you see what this means to the plaintiff’s attorney when he or she receives this from? From the date of the accident onward they knew they had screwed up!

However, even if the information that is being tracked makes sense, what is it doing on that form? That is an accident report form, not an insurance report form.

I saw this tack of forms on a table and just glanced at them, flipped them over and laughed out loud when I saw that last line!

However, these forms are worse than the information they collect. They are worse because the information is collected to begin with. The purpose, although thought to be great and altruistic when started never works and usually becomes a nightmare.

A. Never track incidents. An incident at worse is your good luck that it was not worse. You can never track all the incidents and the definition of an incident will cost you a day on the stand and in deposition as the opposing attorney attempts to understand why you track something’s and not others.

An incident is anything less than an accident. That is the best definition you can reasonably apply. Are these incidents? 

I grabbed the salt rather than sugar shaker while making cookies, through the cookie dough out.
Johnny was doing his swim test and panicked. I grabbed him and pulled him to shore.
Suzy fell off the climbing wall but landed on the pads. She is fine. 
Jerry, a staff member did not have his locking carabiner on correctly, and it had snagged open on his shirt. I noticed it from the ground and let him know. 

All have the potential to be accidents or disasters. Even so, you or your staff corrected the problem before the accident occurred. Track them? Heck no. The staff did what you had trained them to do, prevent accidents.

So?

Don’t write forms worried about lawyers and lawsuits. Do create forms based on what is needed. This form is needed to track first aid and accidents. Nothing more should be on this form than to track first aid issues and accident issues.

Next only create a form to collect facts. Never Opinions. It is not your job to write down an opinion. As soon as you do, more information will surface that may change your opinion. There is nothing worse than a corrected form especially when the changes are in the “what happened” section.

All the problems I’ve listed above violate the above two rules.

No opinions, no information other than what was needed to record information for future use. Record nothing that can come back to haunt you in court or worse make you look foolish or stupid in court.

How should you do it?

If you do record information, for accidents only record what is necessary. One ski area in Colorado could track 80% of the medical calls on the front and back of 5” X 7” cards. Witness statements were on a separate 5” X 7”. Do not collect anything more; who was injured, and their contact information, where they were hurt and any other important information.

Determine what you need? Then collect that and only that information.

What do you think? Leave a comment.

Copyright 2010 Recreation Law (720) Edit Law, Recreation.Law@Gmail.com
Twitter: RecreationLaw
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