The final steps

15 April 2008

The city of Bellevue, the fourth largest in Washington State, lies just across Lake Washington from Seattle. It is a wealthy area where life is centered on shopping and boasts some of the highest volume import sports cars dealerships in the country. But until November 16, 2006, most of America had never paid it one bit of attention.

Matthew Ammon, a 31-year old intellectual property lawyer with Microsoft, died that day from rib, pelvic and other fractures when a 210 foot tower crane crashed into his home. The crane fell into condo residences at the Pinnacle Bell Center, killing Ammon and rendering 30 other residents temporarily homeless. The accident grabbed national media attention that brought the crane industry-and, more importantly, the issue of its safety measures-smack dab into the middle of the limelight. The Red Cross was brought in; both a city and a company mourned the loss of someone regarded as “hugely enthusiastic,”and; the state headed up a forensic accident investigation that would target the crane and construction industry for months to come.

Forensic response

The investigators assigned to the Bellevue incident took the forensic investigation to new heights by using search and rescue dogs and thermal imaging. And while these measures may seem extreme when compared to the boom collapse of a lattice boom crawler while flying trusses, it emphasizes and accentuates my point: forensic investigations make and break cases.

Once the basic facts of the case have been established, within hours of the accident, the investigation shifts and the focus becomes a forensic one. Webster defines “forensic”as “relating to the application of science to decide questions arising from crimes or litigation.”And although most of the crane accidents we deal with do not arise out of criminal acts, for all intents and purposes, this is how each incident should be viewed. Crane accidents eventually end up in court and, unless the appropriate measures in protecting an investigation are taken, a company can essentially find itself, albeit unknowingly, doing the plaintiff 's investigation. Misconceptions run rampant when it comes to defining the difference between attorney-client privilege and the work-product doctrine. Simply calling the attorney that the president of the company plays racquetball with on Wednesday mornings does absolutely nothing to preserve the integrity of the internal safety investigation the company plans on performing. Attorney-client privilege is a legal concept that protects communications between a client and his or her attorney, and keeps those communications confidential. It pertains solely to conversations between an attorney and his or her client that have to do with the case the attorney is hired on, and in no way protects any conversations or work product prepared by third parties (as in anyone other than the person having the actual conversation with the attorney).

In American civil procedure, the work-product doctrine protects materials prepared in anticipation of litigation from discovery by opposing counsel. It is also known as the work-product rule, the work-product immunity, the work-product privilege (somewhat erroneous terminology), and the work-product exception. This, the work product doctrine, is what a company should strive for. A safety investigation done under the expressed direction of an attorney hired specifically to protect the company's interest in concert with an accident is protected. And so are the interviews, statements, pictures, maintenance records and anything else uncovered during the performing of that task. Protection is the name of the game and when subpoenas start raining from plaintiff's desks, the work-product doctrine is the umbrella the company needs.

After the proper protections have been established, investigations tend to reveal the need for more defined or precision expertise. Different types of expert disciplines can be needed based on the critical issues found to be at the core of the accident. Structural and electrical engineers, geo-technical authorities, and metallurgists can all be vital factors in managing the outcome of an accident investigation.

But it is important to remember that expert witnesses need to be managed strategically. They can provide the decisive opinion or testimony to allow a company to win its case, but the flipside, which a crane company needs to be acutely cognizant of, is that expert witnesses can be painted by opposing counsel as being a paid advocate or “shill”and not really an expert. And in worst case scenarios, when not managed properly, their expert opinions can be used adversely.

Legal response

The last element of a crane accident investigation deals with the legal interpretation of what has transpired in the first three phases. The combined results of the technical efforts put forth in the accident, tactical and forensic responses lead directly into the legal portion of this process-where the facts of the accident and the law are merged. The legal investigation needs to catch up with the field investigation so there is still time to go back and reinvestigate subjects of concern that legal counsel may deem to be important. The investigation needs to remain open until counsel has thoroughly explored all options and considerations. Lawyers look at things through a different set of eyes; oftentimes, eyes that see facts in a different light. By avoiding the following three important pitfalls, a company can greatly enhance the overall picture:

1. Never accept any additional legal or contractual responsibility after the accident.

2. Never agree to accept risk or insurance obligations on behalf of the other party.

3. Never waive any rights to other parties.

Contractual risk transfer

Contractual risk transfer is a term heard frequently around renewal time but the steadfast truThis that those three words can, and do, have a significant impact on the future of a company's insurance rates. Having the right contract in place when the sky is, literally, falling, can mean the difference between walking away without any monetary scars and being financially crippled. For contractual risk transfer to be successful, a company must investigate the paper trail. Contracts, work tickets, pre-bid letters, proposals, documents, faxes and e-mails must all be readied for legal review and, as soon as possible, the legal contract analysis should begin. This analysis could have a momentous impact on the scope and direction of the investigation, so there is a blatant urgency in allowing for this to occur.

The legal element of a crane accident investigation is cumbersome and laborious but it is where a company can find the bullets to load in its gun. When out-of-state contracts, projects, and issues are realized early, both defenses and offenses can be tailored to suit. Attorneys can give advice on what laws apply in the state where the accident occurred, as well as bring up legal doctrines such as “borrowed servant,” “spoliation of evidence,”and “preservation of evidence.”

In closing

After all is said and done and operators as well as dispatchers have gone home for the night, owners and safety professionals find themselves losing sleep over accidents. Reinvestigation should be on the frontal lobe of everyone close to the case and vulnerabilities and weaknesses should be considered from all angles.

No one likes an accident but, as the city of Bellevue witnessed first hand last November, they do happen. And when they do, they wreak havoc and can take lives. But if the company that owns the crane performs an investigation that touches each of the elements listed above, the likelihood of being held responsible for something the company had no control over is greatly reduced.

Perhaps Jack Welch can say it better than I: “Control your destiny, or someone else will.”

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