Litigation Defenders

One of the best things a premises owner can do when an incident occurs is to properly document it. However, the details of how, what, and when can vary greatly depending on innumerable factors, including the nature of the premises, the business operated in it, and the typical employees working there. 

This four-part series on documenting incidents addresses Inspections, the Incident Report, Witness Statements and Photographs/Surveillance.

Documentation can actually start even before the incident occurs, such as documenting what, when, and how a premises owner inspects its property. This type of documentation can prove crucial to undermining a plaintiff’s attempts to establish notice.

While it is the plaintiff’s burden to establish that the owner/operator had notice of the alleged hazard at issue, the recent Lowrey case made it clear that if a defendant brings a motion for summary disposition, claiming lack of notice, the burden shifts to the defendant to present evidence to establish what constitutes a reasonable inspection under the circumstances.

Due to the recent Lowrey decision by the Michigan Court of Appeals, documentation has become even more important to a defendant seeking to establish lack of notice. However, not all documentation is helpful and, additionally, poor or inconsistent documentation can be worse than no documentation at all. For example, a young or inexperienced employee may forget to document an inspection, thereby creating the presumption, years later when a lawsuit is filed, that the inspection never happened at all.

When determining whether to document routine inspections, some things to consider include:

• Who is implementing the inspections? Inspections done daily or monthly by management are much more likely to be rigorously documented than hourly inspections performed by young employees or employees in positions with high turnover rates. 

• How relevant are routine inspections to your type of business? It makes sense for a business with a steady flow of customers throughout the day to do routine inspections, such as an hourly visual inspection of a main aisle way. But other businesses have periodic rushes of customers or guests such that sometimes hourly inspections would be unnecessarily frequent, and other times not often enough. Examples of the latter might be a bathroom in a movie theater, which would experience a rush of traffic each time a movie ended, or a restaurant lobby during the dinner rush. 

• Will you consistently maintain the documents? Having MOST of the paperwork documenting the inspections is not helpful when the document you need happens to be the one that was “misplaced,” or “accidentally thrown away.” Depending on the situation, a plaintiff may seek a spoliation instruction with a claim that you intentionally destroyed the document, thereby obtaining an adverse inference against you! Premises liability cases in Michigan have a three-year statute of limitations. Will you and your staff reliably maintain these documents for that length of time? Do you have adequate training and processes in place to ensure you will? The likelihood and consistency with which such documents will be maintained may be affected by considerations such as whether the documents are paper and kept on site or completed electronically and submitted to a corporate office. 

If you are not sure where your premises fit with respect to the above, or whether maintaining documentation of routine inspections would help or hinder management of your business risks, talk to your attorney to discuss your business’s unique needs and situation.