The successful defense of any premises liability claim begins well before a lawsuit is filed. In fact, many times it starts even before an incident has occurred. This roundtable discussion will outline how to prevent squandering your next opportunity to establish the proper defense of your premises liability claim. We will highlight best practices and tips for pre-suit activities and the importance of RESPECT. R-E-S-P-E-C-T encompasses: Recorded statements, Electronic evidence, Surveillance, Preservation, Examination, Credibility, and a Trial mindset.
Recorded Statements (Reports)
It’s extremely important that you contact all parties involved in the incident in the first 24 hours after a claim is filed. In addition to the fact that memory erodes over time and makes us more susceptible to suggestion, prompt contact of all parties involved is a major deterrent to fraud.
You may think that you don’t have much control over an individual’s inclination to do something dishonest, but that’s not entirely true. Research has found that fraud almost always stems from a convergence of three factors: pressure, opportunity, and rationalization. This is referred to as the“fraud triangle theory.” 
Create an incident report, citing the claimant’s name, where they fell, what conditions existed, what injuries were suffered, where the injured sought medical care, and the names of any witnesses and their contact information. This report will serve as an official description of the events. Supporting documentation, such as photographs of the fall site, can be helpful if that indicates no obvious hazard existed that was the fault of the company.
Document the incident thoroughly and provide information to the company’s insurance company as soon as possible. Record the customer’s name and contact information. Write down everything you observed, what occurred after, and the appearance of the customer’s injuries. Be sure to also take statements from any witnesses.
A legal duty arises to preserve electronic documents and data if they are relevant to a lawsuit that you reasonably anticipate will be filed in the future.
Once a defendant becomes aware of a potential claim, they should continually assess if surveillance is appropriate, and what types of surveillance is needed. Types of surveillance include video surveillance, social media canvasing, medical record canvasing, or public record document searches.
Many people use social media to update others about events in their lives such as new jobs, vacations, weekend activities, etc. Information on Facebook, Instagram, Twitter, blogs, and other social media platforms is not necessarily private and can be investigated by parties to a lawsuit. Even a simple internet search can provide helpful information about a plaintiff’s participation in events, prior lawsuits, etc.
In many different types of civil litigation, information voluntarily given by the claimant can provide insight into their activities of daily living and thoughts, as well as provide useful admissions. It is a good idea for defendants in a potential lawsuit to continually monitor the plaintiff’s social media posts for relevant information that may be used as a part of the defense.
It is important to note that one may access and view any public portion of an adverse party’s social media profile and account; however, friending or requesting to follow a represented adverse party is likely to violate the rule.
Preserving information relevant to a pending lawsuit is important for many reasons, but a reason that should get your particular attention is this: If your company fails to preserve evidence after litigation is reasonably anticipated, this failure can lead to serious punitive consequences for evidence “spoliation”—i.e., the negligent or intentional destruction or alteration of evidence. These consequences can include monetary sanctions, awards of attorney’s fees and costs for the price of investigating and litigating document destruction, and litigation consequences such as default judgments, dismissal of certain claims or defenses, or court instructions allowing a jury to draw adverse inferences about what destroyed evidence would have shown.
It is important to preserve relevant information even if it may not seem significant. Preserve current policies and procedure, cleaning protocols, and cleaning logs.
Spoliation is a growing area of concern in many jurisdictions. In PA, proof of bad faith is now required to argue spoliation.
Closely inspect the site where the individual fell to determine if any dangerous conditions exist. The flooring or carpeting should be checked to see if it is in bad shape, or if some other condition existed that should have been noticed and taken care of prior to the incident. Not all hazardous conditions result in a small business owner being held responsible for the fall. For instance, on rainy and snowy days, most floors in buildings get wet and are known to be slippery. Falls in those situations may be seen as beyond the company’s control.
Credibility is the believability or trustworthiness of a plaintiff or witness. If a witness’s testimony and demeanor convince you that he/she can be trusted, then that witness is credible. A witness’s credibility is often as important as his/her actual testimony. On the other hand, if a witness is not believable, then the content of his/her testimony is irrelevant and likely to have minimal impact on the matter at hand.
Treat each claim from inception as if the matter will go to trial. Often the claim that becomes a problem is the one we thought would resolve early but does not.
No matter where you practice, the successful defense of any premises liability claim begins well before a lawsuit is filed. The moment you become aware of a potential claim, remember the importance of employing RESPECT.
 N.Y. Rules of Prof’l Conduct R.4.2.