Preserving the Accident Site and Other Evidence
06/23/08
Conflicts exist regarding preservation of the accident site and other evidence. First, there is an obligation to render aid to the injured party. Second, OSHA requires that the hazard once identified be abated. Third, a company can be found liable for spoliation of evidence. Fourth, there is a need to protect evidence which may later be helpful to the company, the injured party or to the respective insurers. Last, there is the obvious need to finish the actual work. The actions taken by a company in such a situation are dictated by the degree of urgency present in each unique circumstance.
The company’s first requirement is to render aid to the injured party. That means that destruction of evidence may be necessary as part of those efforts. Preservation of evidence should never override or adversely affect rescue and/or first aid efforts.
Second, OSHA requires an immediate abatement of any identified hazard. That means that all hazards should be corrected and/or removed from the job site. Inherent in abatement may mean the alteration of or removal of physical evidence. In such cases, the alteration of the physical evidence should be well documented both as to the necessity to have made the alteration and of actual alteration made. If possible, prior notice of the alteration should be given to parties with a reasonable anticipated need to examine the actual altered item. Understanding, at times no time will be available. Actual destroying of all items should be avoided. Thereafter, the altered items should be made available to concerned parties on a controlled basis. At all times maintaining the physical integrity of the item if possible.
Third, case law exists which implies that a company may be found liable for spoliation of evidence. Further, OSHA and others may enhance fines and penalties if it appears the company deliberately engaged in an effort to destroy or hide evidence. Therefore, all reasonable efforts should be made to preserve material physical evidence. However, that does not require the “enshrinement” of a work site, nor does it require a company store forever items of no subsequent value to the company. If an item is no longer needed by the company for its own use, reasonable notice should be provided to the affected parties, giving them an opportunity to examine and perhaps even purchase the item if required for their use.
See Are You Prepared For Accidents?; Developing Protocol For Accident Documentation; Differences Between Employee and Third-Party Accidents; Selecting a Company Spokesperson and What Information to Divulge; Improving Workplace Safety Procedures During Litigation: Will It Hurt Your Case?
For more general information, visit Construction Law.
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