Managing a Serious Personal Injury Incident on a Construction Project

1. Introduction
2. Be Prepared
1. Maintain Open Lines Of Communications
2. Emergency Contacts
3. Personnel Files
4. Hazard Analyses
5. Maintain Safety Meeting Attendance Information And Records Of Minutes
6. Safety Program
7. Disaster Planning
3. Post-Accident Communications
1. Communicating With The Family
2. Communicating With Work Force
3. Communicating With Plaintiff's Counsel
4. Communicating With Other Involved Companies
5. Communicating With Insurance Carrier
6. Communicating With The Media
7. Communicating With Emergency Personnel - Police, EMS, Etc.
4. Dealing with OSHA
1. Notice Requirements
2. Investigation
3. Effect Of Citations
4. Settlement Agreements
5. Possible Early Legal Action
1. Investigation By Plaintiff's Counsel
2. Temporary Restraining Order To Preserve Evidence
3. Petition for Pre-Suit Investigation
6. Anticipation of Litigation
1. Work Product Defined
2. Core Work Product Defined
3. Proof Of Anticipation Of Litigation
4. Survives The Present Controversy
5. Early Use of Experts
6. Incident Report, Changes in Operations and, Witness Statements
7. Common Defenses
8. Attorney Client Privilege
1. The Retention Must Relate to "Legal Services"
2. Engagement Letter Should Define The Scope of Service
3. Unique Problems Of In-House Counsel
1. The "Professional Legal Capacity" Rule
2. The "Primarily Legal" Rule
3. The "Subject Matter" Rule
4. Restricting Dissemination of Privileged Material
9. Spoliation of Evidence
1. Generally
2. When Does the Duty to Preserve Evidence Arise
3. Consequences of Spoliation
1. Jury Argument
2. Exclusion of Evidence
3. Jury Instructions
4. Rebuttal Presumption
5. Simple Presumption
6. Relaxed Burden of Proof
7. Discovery Sanction

Abstract

The construction industry is fraught with danger and the possibility of a catastrophic accident is a daily risk. Factors contributing to the danger include heavy machinery, an uneducated work force, working at heights, in trenches, in traffic, and around noxious materials. There are three categories of companies in construction - those that have experienced a catastrophic accident in the past, those that will in the future, and those that are out of business. Catastrophic accidents occur despite the exercise of utmost care. When they occur, Company decision-makers are forced to respond and take action. While the decision-makers in the organization may not have detailed information regarding the facts of the accident, they will be looked to for guidance on how to react. That reaction, while it did not cause the accident, will be closely scrutinized by the families of the victims and by plaintiffs' counsel for any possible impropriety.

This article will discuss some practical issues involved in managing serious personal injury accidents on construction projects in order to minimize the legal exposure to the construction company.

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