Providing proof

Site reports from last winter critical to defending a slip-and-fall claim have been lost or damaged. Attorney Justine Baakman offers insight on what to do.

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The old “my dog ate my homework” excuse holds no weight in a court of law when documentation is required to clear you from a questionable slip-and-fall claim. So, what’s a snow contractor to do?

While a fair percentage of contractors still rely on pen and paper as the core of their documentation procedure, the best advice to avoid dealing with lost or damaged site documents is to go digital.

“Digitally story documentation when at all possible,” says attorney Justine Baakman. “It’s much easier to store documents in the cloud then to find a space for paper documents.”

There are methods for reproducing documents that won’t negatively influence the defense in a slip-and-fall case, Baakman says. For example, if a contractor spills coffee on a site report and it needs to be handwritten, that’s okay as long as it’s noted, she says.

“If you handwrite a report and then later type up a digital version, then both versions should be kept,” she says. “However, if the handwritten copy gets lost or damaged, as long as it’s noted and you can give a credible explanation, generally that’s OK. But we’re always going to need to note that this is not the original document.

“The other party is entitled to the original document,” she adds. “And if for some reason the original isn’t available, we need to make (opposing counsel) aware of that.”

And if a document simply cannot be produced because it was either lost or damaged, Baakman says it’s considered “adverse inference” by the court and is not favorable to the defense in a slip-and-fall case.

“From a jury’s perspective, that’s something that will be looked down upon,” she says. “If a document existed and is now no longer there, it’s seen as benefitting the opposing party’s case.”

While the statute of limitation on a slip-and-fall claim is two years, Baakman recommends snow contractors maintain their documents for at least five years.

“Often, you might get a case where the lawsuit may get filed, but [the contractor] may not be aware it was filed for two and a half to three years after the incident happened because, maybe, the [contractor] wasn’t served properly,” he says. “With digital storage nowadays, that shouldn’t be too much of a burden on the contractor.”

And when in doubt, Baakman recommends snow and ice management contractors always consult their attorneys on the proper way to maintain, reproduce and store the documents that relate to their business.

Mike Zawacki is the editor of Snow Magazine.

October 2019
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