In a country where daytime television is littered with commercial after commercial of fly-by-night attorneys promising financial reimbursement for injuries ranging from whiplash to coffee burns, it is no surprise that when a crane goes down, plaintiff attorneys see dollar signs.
Take for instance the Miller Park incident, which resulted in a Milwaukee county jury assigned in the “Big Blue” crane case to return a verdict awarding $5.25 million in compensatory damages and $94 million in punitive damages. The award was immediately challenged and then reversed by the court of appeals in 2003 only to be overturned by the state Supreme Court in 2005 and sent back to Milwaukee County to resolve myriad legal issues.
Seven years after that fateful day in July 1999, the logistics of the case are still being argued, and the final monetary cost of operating a crane in conditions that were way too windy still cannot be calculated. Miller Park is a prime example of not only the importance of a proper and diligent accident investigation (seven years later and the case still relies on the findings of the initial investigation), but also the millions and, in this case, hundreds of millions of dollars at stake.
As a crane company owner, and certainly as a crane operator, there are definite risks, monetary and emotional, associated with doing business. The potential for accidents is ever present regardless of how diligently we try iniand integrate safety into our culture, and on days when loads fall and cranes get “light,” we have to be ready with measures to mitigate the damage that can be caused by the vultures of daytime television.
We live in litigious communities where the term “lawsuit” has become the answer to almost all of life's troubles. An overturned crane on the side of one of America's main thoroughfares means new cars and steak dinners to passing motorists with mysterious neck injuries and emotional discomfort. But if the crane company owner that finds himself staring at the underside of a 75-ton Grove without being underneath it understands the key to a successful accident investigation, financial loss and legal migraines can be greatly reduced.
It is imperative in each incident, regardless of fault, that the assumption be made that the incident will result in a claim. The insurance Investigation tip: iniand company claims team should be notified immediately that an accident has occurred and rapid response on the same day, preferably within minutes, should occur. Notices of construction defect or loss of business should be treated with the same sensitivities as occurrence type claims. After all, it is sometimes these claims that can be the most expensive if they are not given the proper attention.
First element: accident response
Crane accident investigations can be complicated even on simple claims. Liability investigations for construction accidents, and crane accidents in particular, represent the most difficult type of accident to properly investigate. Contractor restrictions due to security issues or OSHA authority may contribute to limited access to the site.
The placement of the crane and other equipment on the jobsite, including the boom position, accessories, or other component parts, can quickly change. The configuration of the load can change, witnesses can disappear, harmful or negative statements can be given, and the case can be lost before it even goes to trial. Rapid response is crucial.
Second element: tactical response
Within 24 hours and preferably, the same day, a qualified investigation team should be deployed. A specific plan and agenda for a.m. losses and p.m. losses, should be implemented and followed, and “no stone should remain unturned.” All contracts pertaining to the job should be secured and signed, even postaccident, keeping in mind that it is absolutely critical to define the responsibilities of a construction site contractually. This includes daily job tickets and/or work tickets.
The tactical response, its name taken from the SWAT team approach that is needed in crane accident investigation, is the element responsible for “setting the stage” for the forensic team. And just as the accident response preserves the scene for the qualified claim investigators, the tactical response is designed to identify and preserve key site conditions and equipment for the proper qualified forensic experts.
In many circumstances, geotechnical or metallurgical experts are needed to address key issues in assessing accident cause and liability. By having a member of the accident investigation scene take photos using the “8-point method” common amongst law enforcement, the proper site documentation can be achieved.
Just as important as photographs in the tactical response stage is the task of sizing up the scene. Key measurements and hard data need to be documented and recorded, and all critical distances should also be noted. Pertinent load information needs to be collected, and the use of GPS equipment should be considered for elevation issues. GPS can make site pictures and crane position rock solid. By mapping out the latitude and longitude of the item in a specific picture the margin for error is removed. The picture is then absolute.
When sizing up the scene, moving the equipment, altering the equipment set up, allowing the load to be bundled or unbundled, or allowing any undocumented change in site conditions should be avoided. In short, during the tactical response portion of the investigation, the crane company should put the “yellow tape” around the “crime scene” and wait for the “detectives” (in the form of qualified forensic experts) to assist the legal and claims team.
When accidents occur people see them and when people see them it brings an entirely different aspect to the accident investigation: Witness information.
Witness information can be an “ace in the hole” or a “stake in the heart,” depending on how the information is gathered and handled. Human factors such as forgetfulness and “selective” memory end up playing a huge role in witness information and steps should be taken to eliminate as many of these as possible. All potential witnesses employed by the crane company should be identified and all their contact information should be gathered. All potential independent witnesses should be identified and the “informal statement” approach to gathering information should be considered.
Witness information is important but how it is gathered and applied is even more important. Waiting for guidance from an attorney is a good practice to become acquainted with and using a key witness at a strategic time later on in the case can be the crane company's saving grace.