Jonathan H. Colman and Angela DiDomenica | CLM Magazine | April 2017
Questionable slip and fall claims aren’t going away anytime soon. According to the National Safety Council, slip and fall incidents are the third leading cause of injury to customers and employees each year, costing American businesses a whopping $70 billion annually in workers compensation and insurance claims.
In analyzing a slip and fall claim, either pre-litigation or at the onset of litigation, an investigation and discovery plan is crucial. Depending upon the nature of the claim and potential injury exposure, counsel representing companies and insurers are tasked with the responsibility of directing investigations (to protect attorney-client privilege whenever possible) as well as discovery. In advance of the retention of an expert, it is important that fact specific requests for admissions and contention interrogatories are used to force the claimant to narrow the facts of the loss as much as possible. Detailed deposition questioning— including, most importantly, eliciting testimony about all of the movements of the claimant prior to, during, and following the alleged incident—will help not only counsel at trial, but also the designated expert.
Red-flag indicators specifically relating to questionable slip and fall claims include the following:
1. An unusually long distance between the location of the fall and the claimant’s residence.
2. Attorney involvement may include linkage with medical clinics and prior slip and fall claims, attorney representation on the date of the loss or soon thereafter, and the first notice of loss being made by the attorney.
3. Inspection of the scene shows no defect in the surface that could have caused the slip and fall.
4. The reported body movements are contrary to the laws of physics based upon the reported facts.
5. Minor slip and fall procedures with highly questionable and exaggerated medical costs.
Retention of the appropriate investigators and experts is important to obtain detailed statements from the claimant, conduct interviews of property/business owners as well as employees, and canvas for witnesses and surveillance, medical history, background checks, and even sub rosa. Investigators also will request maintenance records (sweep sheets), interview potential maintenance witnesses, obtain necessary safety manuals, and arrange for a determination of whether the location of the incident complies with appropriate building codes, standards, and guidelines.
Analyzing an alleged slip and fall event entails ascertaining, if possible, which adjusts the speed of the truck while in cruise control and attempts to maintain a set following distance when detecting a lead vehicle in front of it. However, one must understand the multiple parameters of a particular vendor’s collision mitigation system technology, specifically including radar detection of—and reaction to— moving vehicles, stopped vehicles, and stationary objects.
On the contrary, lane departure warning systems and event recorders are passive safety systems. Lane departure warning systems use camera technologies to identify lane markings and provide an audible, visual, or seat vibration alert to warn drivers of lane deviations when the appropriate turn signal has not been activated. Naturally, this technology application presents difficulties when the cameras are misaligned or the roadway markings are obfuscated, for example, by construction or by precipitation on the window.
Event recorders capture video and other data, and have basic features that may include:
• A one-way, road-facing camera that captures what is going on outside the truck.
• A two-way camera, with one lens road-facing to capture external events and another lens facing into the cab to capture the driver.
• A quad-view or 360-degree view, using multiple cameras to see all around the truck.
• Recorders that capture the speed, lateral movement, accelerations, and decelerations (measured by g-force change), as well as other mechanical aspects of the vehicle.
Event recorders typically operate in one of two modes: continuously recording or on demand. The latter is triggered by a certain set of events, such as a hard brake, overspeed, or high definition shock (variably measured by each vendor as a g-force change). Some implications of the technology’s application are very clear. The CEO of one major carrier recently testified before Congress that the use of collision mitigation systems reduced rear-end collisions by 69 percent in one year.
The value of other technologies is not always so obvious. For example, we are aware of carriers that have implemented roll stability control technology only to see instances of tractor-trailers rolling over increase, apparently because drivers endeavored to over-rely on the technology. A technology application’s value, after all, rests largely upon the manner in which we humans interact with it. Accordingly, drivers will need to clearly understand how their safety technology functions in their vehicles.
SHAPING EVENTS
Technology choices cannot be made without careful consideration of the purpose to which the technology will be put. With respect to event recorders, attention must be paid to the size and type of fleet, as well as the nature of the workforce.
For instance, a relatively small workforce that has little turnover and whose drivers navigate familiar routes may take no offense to an inward-facing camera of an event recorder. In contrast, a larger carrier with a more diverse workforce of over-the-road drivers and a high turnover rate may choose not to impose an inward-facing camera on its drivers. Certainly, inward-facing cameras pose a potential privacy invasion for over-the road truckers who sleep in their cabs, but drivers may perceive a privacy invasion even while they’re awake. We are aware of more than one carrier that implemented a pilot program of two-way cameras only to find that turnover increased so dramatically as to make the pilot program untenable.
Event recorders have the potential to capture an enormous quantity of data. A carrier that implements event recorders is well-advised to decide in advance how the data will be used as well as the costs and benefits of using the recorded data as a coaching tool. Certainly, in this regard, the overhead investment to use the data as a coaching tool is substantial. However, the carrier must also consider the uses to which the data will be put in the event no coaching is provided. Those who have been in the industry any meaningful length of time will anticipate the plaintiffs’ bar seeking to use the failure to coach as a sword in future litigation.
With respect to the defense of any particular case, some implications of the technology are fairly straightforward. We can well expect, for instance, that event recorders— to the extent they act as impartial observers of the circumstances surrounding a collision—will provide enormous clarity to cases of clear liability and, just as clearly, prevent protracted litigation over disputed factual issues when viewed by plaintiff’s counsel. We anticipate that claims with reasonably clear event recorder data will close more quickly either through a swifter settlement or a withdrawn claim once plaintiff’s counsel sees the video.
From a legal perspective, carriers will need to make some policy decisions, too. These include determining the video or data retention policy; when and to whom video and data will be released (including instances when the subject driver is not involved in the occurrence itself); and when to seek protective orders for video and data produced, including a prohibition on social sharing. The savviest carriers already are headed down these paths, with no clear answers likely to emerge in the immediate future.
As the continued application and improvement of transportation technologies is inevitable, those in the transportation industry must remain vigilant to understand the current technologies, anticipate future technology, and carefully consider how these technologies will apply to their organizations. The only constant we can fairly anticipate is change.