Accident Scene Investigation 101

 OP COMMERCIALBy John Sparling

Commercial construction can be an epic undertaking, especially in a densely populated area like New York City. Even with the most experienced construction partners, best practices and safety measures in place, accidents happen. When managing risk in a construction site accident, the importance of an immediate and thorough investigation cannot be overstated.

Whether or not an accident causes personal injury or property damage, securing the scene, documenting the cause and preserving the evidence is critical. Developers, owners or tenants, general contractors or construction managers, subcontractors and even insurance brokers or carriers have a significant financial stake in the aftermath of a construction accident.

Its best to investigate an accident scene and preserve evidence immediately after the accident occurs. Eyewitness accounts are most accurate in the hours and days following an accident, when outside influence and bias is limited. Because the accident scene is often controlled by potentially liable parties, failing to investigate immediately is often a critical mistake. Maximizing the investment required in an investigation becomes the paramount concern; however, the benefits of an immediate investigation usually outweigh the cost of the professional investigator and counsel on higher risk accidents.

Be Prepared

Preparation should begin before ground is broken. Since a construction litigation team is often assigned to all cases and accident investigations for a given construction project, it is vital to maintain a library of documents throughout the course of the project. A thorough project review should be conducted, including the scope of the project, contracts and coverage documents enrollment, before the ground breaking. Suggestions can then be made to minimize risk and exposure. Project team training on accident investigation, labor law and good practices can be scheduled as needed. Good preparation starts with assembling a good team, including a third-party investigator, on-site medical personnel and counsel, as well as project personnel.

Investigation and Reporting

When coordinating a construction site accident investigation, written directions should be disseminated immediately, establishing privilege and the coordination of all communications through the designated investigator. The scene should be cordoned off and evidence removed and preserved. Relevant paperwork is obtained including pre-task plan records, orientation sheets, toolbox talks, contracts and certificates of insurance. It is critical to immediately determine other available coverage from unenrolled or potentially responsible parties or scopes of work. Expert consultants can assist in the early analysis and investigation, depending on the accident scenario. Once statements from witnesses, photographs and/or videotapes are obtained, a privileged counsel report is prepared, attaching all evidence.

Great care is needed when drafting accident report language and scope, since the report may inculpate the project, owner and contractor if poor choices are made. Although communication is critical to maintaining the safety culture of a site and to preventing incidents from occurring in the future, care to maintain privilege of reporting the root cause is important, if possible, depending on applicable state law and practice.

Consquences of Failure

In my 25 years being involved in construction accident investigations, I have seen every type of accident investigation failure play out in litigation. Typical examples include: 1) failure to secure timely witness statements leading to a liability scenario; 2) an accident is not thoroughly investigated and then later a case is developed by the plaintiffs counsel and a suit is filed on the cusp of the statute of limitations, when it is too late to catch up; 3) an accident report inadvertently targets an enrolled trade essentially sealing liability; 4) evidence is not immediately preserved, preventing an expert from determining that safety devices provided proper protection; 5) records or project team statements are not preserved, allowing memories to fade resulting in the loss of  key evidence by the time the suit is filed; and 6) photos are not taken, which would have shown the negligence of the plaintiff in causing his own accident.

There are many ways in which accident investigations can be mishandled, leading to poor litigation results. Construction litigation cases are technical and nuanced. Winning them often depends on the determination of a small disputed fact. Immediate accident investigation is critical to successful results. Some companies, carriers and brokers believe they can effectively control risk, streamlining the process depending on the type and severity of accident. Few decide to investigate with an outside investigator, and some never utilize counsel at all in protecting or directing investigations. In the end, it is a balancing act between cost and the very real risk in the New York construction litigation world as to what investigation is permitted. However, from the defense counsel perspective, with the law and union strength the way they are, a complete and immediate investigation is imperative.  

John Sparling heads the construction litigation practice for Cullen and Dykman LLP, one of the state's oldest law firms. He has handled complex construction litigation for more than 25 years, including defending projects such as the new Yankee Stadium, New York Presbyterian Hospital and the Durst Pyramid building, and the renovations of Lincoln Center, Madison Square Garden and the Hearst Tower in New York. He can be contacted at jsparling@cullenanddykman.com. 

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