Why accident reports can come back to haunt you.

Herbst v. L.B.O. Holding, Inc., 2011 DNH 72; 783 F. Supp. 2d 262; 2011 U.S. Dist. LEXIS 46977; 85 Fed. R. Evid. Serv. (Callaghan) 285

Accident reports can be admitted, if the accident is substantially similar, which proves to the jury that you don’t mind injuring people.

In this case, the plaintiff as an adult, was using a ski area alpine slide when his sled left the track causing him injury. He sued for his injuries. The ski area,

English: The Alpine Slide on Jackson Hill.

Image via Wikipedia

Attitash Bear Peak Resort, in Bartlett, New Hampshire had filed a motion in limine with the court which gave rise to this decision.

A motion in limine is a motion where one party asks the court to exclude testimony or statements being proffered by the other party. Here the Ski area was attempting to have prior reports from accidents on the alpine slide kept out of the trial. The ski area and the plaintiff were also attempting to restrict or prohibit other testimony and exhibits also.

One of the first issues was the background and history of the plaintiff. The plaintiff was trying to prevent the defendant from brining in the issue that the plaintiff had been convicted of mail fraud. An issue like this is based on whether the felony conviction is a conviction for dishonesty or fraud. Here it was a felony conviction for dishonesty. A felony normally cannot be brought in, absent special circumstances if the conviction is greater than ten (10) years old. Although the plaintiff’s conviction was greater than ten years old, because of the type of conviction, the judge thought it was relevant and allowed the conviction to be used at trial.

The next issue was the amount of medical bills incurred by the plaintiff. The plaintiffs’ medical bills were paid by Medicaid. As such, those bills when paid were discounted substantially. The plaintiff wanted to claim the medical bills were the amount prior to the Medicaid discount. Here the judge found that the full value of the medical bills was to be admitted not the discounted amount paid by Medicaid.

The value of the medical bills is always an important point. The jury usually bases its damages as a function of the medical bills.

The defendant wanted to exclude expert testimony of the plaintiff’s expert witness about warning signs or the inadequacy thereof. The plaintiff’s expert had only mentioned the signs in one sentence of his report and included photographs of the signs in his report. An expert witness report must contain a complete statement of the opinions he or she will express and the basis or the reasons for those opinions. The defense argued the one sentence was not enough to be a complete statement of the opinion. However, the court found it to be enough and will allow the testimony of the expert about the inadequacy of the signage into the trial.

The final argument was the plaintiff wanted to admit into evidence the accident reports of the 22 similar prior accidents. Six of the reports came from the New Hampshire Department of Safety, and 15 were from Attitash itself. One of the reports was based on an observation of the plaintiff’s expert witness when he was at the site investigating the scene.

So?

For an accident report to be admitted into trial the report must be substantially similar to the accident at issue.

Evidence of prior accidents is admissible . . . only if the proponent of the evidence shows that the accidents occurred under circumstances substantially similar to those at issue in the case at bar

The court found that four of the reports would be admitted of the six filed with the state and the 15 kept by the defendant. Those six were substantially similar to the accident that injured the plaintiff. Here, that similarity was the sled leaving the track on a curve.

The court found the following four reports significant and similar.

·         the accident on July 12, 2005 (where the rider “came through [the] dip, came to next set of banks, came out of track”);

·         the accident on July 23, 2005 (where the “sled came off track” near a bank);

·         the accident on August 3, 2005 (where the rider “hit the curve, jumped the track”); and

·         the accident on July 16, 2006 (where the rider “came from a right turn into a left turn and his cart flew off”).

The court also agreed to allow the report of the plaintiff’s expert witness of the accident he observed.

The issue then becomes what does this prove?

I believe it proves that it proves to the jury that the defendant has a dangerous track. The jury will see four reports from injuries substantially similar to the one the plaintiff is complaining about. How else could you look at these reports, except as proof that the track was dangerous AND that the defendant had done nothing to correct the problems or make the track safe.

Here were accidents for five years prior to the plaintiff’s accident and one, the expert witness one, occurring after the injury that showed there was a problem.

No matter, how much your employees and expert witness argue that the track is not dangerous, the jury is going to be looking at reports, written documents, prepared by you the defendant, saying the exact opposite.

So Now What?

Do you not create accident reports. No, you must keep records of problems, until they are fixed or used in litigation. However the reason for the reports is critical. If you are keeping them to track accidents, you are doing it for the wrong reason. You use them to do two things and two things only.

·        Provide information in case there is a need such as state or federal investigation or litigation.

·        To solve problems.

1. Any accident report must be solely that, the basic facts, who, what, where, when; never ever, ever a why.

          Accident reports should never have speculation or opinion in them.

2.      You must do something with the information you gather on accident reports. You cannot just collect them. If you notice a trend or locations fix it.

          If you can’t fix it, put up a sign, put it in the waiver, instruct the people about it and tell them they will get hurt if they don’t pay attention.

Below is the accident report used by a major ski area. If you look, the information collected is done so to gather information and prevent litigation.

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Nothing more than the absolute essentials is captured. These are 5 X 7 cards. The information on the form is 100% from the injured party. No information is put on the card by the patrollers unless it is direct information acquired by the patroller such as the release number setting on the skis, etc.

If there are witnesses then there are 5 X 7 cards for them to complete. There was also a form if a ski school student was injured. If the accident was a life changing incident, major trauma then there were more forms. But for 99% of the accidents, the entire report fit in a patroller’s pocket.

If the injured party cannot fill out the card, then the patroller asks the questions and writes down what the injured party says.

No opinion, no estimates, no guesses, just the facts. (Remember Dragnet the TV show from the 60s.)

Then, once you have the information it must be used. Where are the problems, can we fix the problems, should we warn people about the problems? What can we do to prevent injuries, and if we can’t can we warn people they don’t get injured?

If not, those reports will show up in trial, and probably not to help you.

For an article about bad accident reports see Be Afraid, be very afraid of pre-printed forms for your recreation business.

What do you think? Leave a comment.

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4 Comments on “Why accident reports can come back to haunt you.”

  1. Jim Moss says:

    Sorry, I try to get comments up quickly and whenever I do that, I comment too quickly. Thanks for your comments!!

    Like

  2. Jim Moss says:

    The article says that if it is a life changing event (one that has the possibility of being an problem) more information is collected.

    At the same time, I’ve seen long reports create more problems then they solve. Besides killing trees and collecting information you do not need, you are creating a storage problem. From a trial experience, it is better to have the right stuff rather than too much information or not enough information. Collecting too much information creates problems.

    Your statement “While accident reports may show a pattern of similar accidents, those same reports coupled with investigation reports and hazard mitigation planning also show the resort has done everything reasonable to prevent them.” is why so many ski areas and other outdoor recreation programs lose trials. The reports prove foreseeability. The resort new there was a problem. The reports help the plaintiff more than they help the resort.

    “…those same reports coupled with investigation reports and hazard mitigation planning also show the resort has done everything reasonable to prevent them.” again, this statement is why resorts lose lawsuits. You do not need a report to show change. The report only shows one of two things. Either the problem still exists or the problem existed for a long time and the resort did nothing about it.

    As a trial attorney and having reviewed Copper Mountains info and trials for 11 years, they system works.

    Like

    • Steve T says:

      Wow! I wasn’t disagreeing with you about the main points, only the facts, and how the resort deals with identified hazards. I wasn’t saying it’s the patrols job to investigate and do risk analysis reports, that’s up to resort management. If they don’t know a potential issue exists that’s a another problem that needs to be addressed. Notifiying management doesn’t even have to be in writing, probably shouldn’t be, but they can’t do their part if they don’t know.
      In your example there were several accidents going back years, of similar nature and yet nothing was done, at least nothing that was mentioned. It doesn’t matter what reporting method was used (which isn’t identified in your example) for these incidents, they were obviously reported, and nothing was done, which is ultimately the issue in the example. I didn’t see anywhere that the patrol, or ems/rescue were defendants as well, so we must assume their performance was not in question. What was is the resort’s handling of the alleged hazard.
      Whether it’s a 3×5 card or a standardized form, it’s documentation. If the victim goes to hospital there’s a report with them as to how it happened, an ambulance has their reporting, etc. My point was only no matter type is used it should be factual and detailed enough to be able to recall what did and didn’t happen. Your statement in your reply that “from a trial experience, it is better to have the right stuff rather than too much information or not enough information” is my point. If the resort deems a potential hazard not a big enough risk to make any changes that’s fine, it’s their call. But it’d be a shame for a patroller or entire patrol to suffer the consequences of not being able to prove what they did was within their level of care and did everything necessary for the victim. Many times one the victims in your example will file a lawsuit later after they find out there’s been a successful settlement or verdict. What if you have one report structure for one case and another for a different case of the same type. Now you’re defending yourself about different reporting. It’s also a shame when someone puts in a report something they think, but don’t know (I.e. alcohol was a factor if they didn’t have proof properly obtained, only the smell). Nothing but the facts as you stated. That’s why each case should have all, but only necessary information gathered and recorded no matter whether it seems necessary for that case or not at he time. Standardized reporting, either long form or short, ensures this, if it’s properly taught and used. (digital reporting doesn’t require a single tree to be cut down)

      Like

  3. Steve Taylor says:

    I agree. I guess I’m in favor though of more thorough documentation rather than just little cards. Even “long form reports” should not contain speculation or opinion, just the facts, but all the facts. Those cards are great where the victim is going to bring themselves to the patrol/first aid/clinic public safety office for further treatment AND reporting and you should get their info in case they don’t show up. They’re also great for taking notes at the incident, contact info and signatures of victim’s and witnesses,all which should then be added to a long form report along with scene pictures, etc. once back in the patrol room. Every responder should have a digital camera and use it, plaintiffs are always able to find cell phone pictures and video, you should have your own. Much of my business is based on hazard/risk analysis and preventing just such occurrences. While accident reports may show a pattern of similar accidents, those same reports coupled with investigation reports and hazard mitigation planning also show the resort has done everything reasonable to prevent them. I’ve also been asked to testify for resorts on accidents that happened over a year prior. Without substantial documentation of every aspect of the incident, it would difficult to do so without some speculation, which will destroy credibility if the opposing counsel is on top of it. There are always cases where juries look to place ownership for the incident on someone other than the victim. However I’ve also been involved with many cases where the resort’s ability to show they identify hazards/risks and evaluate the ability to eliminate or reduce them, and what measures have been taken to do so, was the key factor in a successful defense. It’s a tough call whether to document thoroughly or not. I guess it depends on the overall Risk Analysis Planning Policies of the resort/facility. Identify & Resolve or Minimize & Hope.

    Like


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