Unfortunately, accidents are an anticipated part of construction projects. Usually, the immediate aftermath of the accident is the crucial moment in gathering evidence that will help defend and limit a construction party’s exposure in potential litigation. Construction professionals should have written post-accident investigation procedures and readily available on their projects. Time is of the essence, and efficiency is key in investigation.
Any post-accident investigation should at least include these steps:
1. Triage and determine the scope of the investigation needed. Make sure that all persons and property on and near the project are safe and secure and that injuries are receiving treatment. Then consider the investigation; this is necessary to determine the game plan and personnel required to investigate. Factors to consider are the number of potential witnesses that need to be interviewed, amount of physical evidence that needs to be preserved and obtained ensuring a chain of custody, photographs and videos needed, measurements, and use of independent investigators and experts.
2. Secure the site for the investigation (if possible).
3. Visit the scene.
(a) Get a written statement, if possible, from the injured worker. An investigator should perform this, to prevent any allegation that counsel affected the statement.
(b) Identify and document the accident location. The location of the plaintiff’s accident is often crucial to defending a claim. Pay attention to details. Take photographs and video footage of the scene. This includes getting any surveillance footage of the accident and location.
(c) Identify and interview all witnesses to the accident. Document the names, employers and contact information for all people on the site that day. Even if they did not witness the accident, they might have valuable information. Have investigators get statements from the witnesses as soon as possible since memories fade with time. This should be done within 1 to 2 days after the accident.
(d) Document all products or pieces of equipment if involved in the accident. Record the product’s general outlook, its name, manufacturer and any serial or other identifying numbers. Make sure it is photographed, videotaped and proper procedures are followed for the removal, securing and tagging. Equipment involved in an accident should never be sent back out into circulation on the project. NY courts have held there is an obligation to preserve evidence once a party should know that the evidence may relate to anticipated litigation.i Other safety equipment available at the time of the accident should also be photographed.
4. Obtain and secure all evidence. Since you will not know what is relevant months to years after the accident when a lawsuit is started, obtain all evidence relating to the accident including documents, plans, progress photographs of the location, orientation materials and instructions provided to the injured party, employee file, certifications, safety training, safety committee meeting minutes, foreman safety meetings, notes from toolbox discussion, daily safety briefings, incident and accident reports.
At Yoars Law, we have decades of experience investigating and litigating construction site accidents. We have represented general contractors, prime contractors, sub-contractors, sub-sub-contractors, construction managers, owners, developers and engineers. So we are acutely aware of the significant costs, dollars and time, that can occur because of construction site accidents. We have developed working relationships with private investigators that understand construction accidents and experts in relevant fields to ensure that a proper investigation is performed for our clients.
i See Tommy Hilfiger, USA v Commonwealth Trucking, 300 A.D.2d 58, 751 N.Y.S.2d 446 (1st Dept 2002).