Defend Against False Claims with Criminal Incident Report
If a crime victim sues your site for negligence, you'll probably be second-guessed for taking inadequate security precautions. If only you had managed things more carefully, the victim's lawyer and expert witnesses will argue, you could have prevented the crime. To justify your actions or inaction and to ward off a potential damage award, you'll have to prove that your security precautions were reasonable under the circumstances.
Those circumstances include what you knew about previous crimes at the site, such as how many, what type, and when. Incident reports are often the best source of that information, since not all crimes are reported to the police. Based on what you knew about previous crimes, an incident report can prove that you couldn't have reasonably foreseen or prevented the current crime.
“Unfortunately,” says security consultant Norman Bates, “managers too often keep inadequate reports.” With the help of experts, we prepared a Model Form: Use Criminal Incident Report to Limit Premises Liability, to help you reduce the risks of a lawsuit. This form can be filled out whenever a crime is attempted.
Defeat False and Exaggerated Claims
Thorough incident reports are your defense against false and exaggerated claims—and the trial lawyers, security experts, judges, and especially juries who may second-guess the security decisions you make.
Victims may exaggerate their injuries or change their stories to make you look bad. In such cases “an incident report is the single most important piece of evidence in an inadequate security trial,” says New York attorney Alan Kaminsky.
Thorough incident reports can smoke out flaws, inaccuracies, and distortions in the victim's story. They can also show that lighting, locks, surveillance cameras, and other security equipment were in proper working order when the incident took place, notes Kaminsky.
Essential Elements of a Crime Incident Report
Here are 10 essential items to consider when putting together an incident report form. You can use the following items to upgrade your current incident report form or to start from scratch.
Date and time. Many incident reports list the date, but leave out the time of the crime. If you know the time of the crime, you can check your records to see which staff members were on duty, and where.
Description of lighting conditions. Demonstrating that the crime scene was well lit can defeat negligence lawsuits for nighttime crimes. Create an entry for listing “measurable facts” regarding lighting at the scene of the incident. It prompts the user to list specifics, such as the type of light source, number of bulbs, wattage, etc. This encourages detailed responses such as “five banks of 400-watt high-pressure sodium floods, four fixtures per bank, one bulb missing, fixture two,” instead of vague judgments or conclusions like “lighting adequate,” “sort of dim,” or “well lit.”
Weather conditions. Rain, snow, fog, and other weather conditions can affect a victim's vulnerability, a staffer's reaction time, and the effectiveness of certain security measures like surveillance cameras and lighting.
Photos and videotapes. Photographs and videotapes taken at the time of an incident can be an effective way to quash false claims by victims about physical conditions like broken locks or overgrown shrubs. But you can't count on your insurer or staff to have the foresight to immediately take pictures. Our Model Form reminds the user to take photos or a videotape of the crime scene and to record the date, time, and name of the photographer.
Victim's identity. Incident reports typically ask only for the name, address, and phone number of victims. But this won't help you locate victims who move after crimes occur. It also doesn't tell you anything about the victim's vulnerabilities and what he was doing at the site—for example, resident, guest, contractor, trespasser. This information could have a major impact on your liability. For example, owners don't have to go as far to protect guests or trespassers as they do to protect residents.
Victim's comments. Immediately after an incident, the victim could make a remark that exonerates you—for example, “It was my fault.” Unfortunately, incident reports usually don't ask for such compromising information.
You should set aside two lines for a victim's remarks. The victim may admit to having left a window open, for example, or a door unlocked. Kaminsky uses statements like these to settle cases with victims who have changed their stories after consulting a lawyer.
Medical assistance. Incident reports typically indicate if medical assistance was provided. But it's often far more important to know if such assistance was refused. In some instances, victims will claim to be fine and refuse medical assistance, only to claim later that they have major medical problems.
Extent of injuries and property loss. The extent of injuries and the value of property lost are crucial. Again, victims are most likely to tell the truth right after the crime. It is important to make an account at that time in case losses are overstated later. You should describe all stolen and damaged property in detail. Ask the victim for the estimated value of each item.
Police information. Incident reports may indicate that police officers were on the scene, but overlook important information about the identity of the responding officers and the police report. Make sure the form identifies the responding officer(s), their badge numbers and department, and the police report number assigned to the case. This information can help you locate witnesses or obtain copies of relevant reports when you need them.
Investigator/reporter. Incident reports typically include the signature of the person who fills out the report, but not the signature of the person who investigated the incident. If these two people are different, the victim's lawyer may later question the report's accuracy. The form should ask for the signature of both the person who investigated the incident and the person who filled out the report, if they are different people. To further ensure accuracy, the form should include an affirmation of the report's accuracy. Finally, ask for the signature of an approving supervisor (for example, your property manager or regional manager), who has double-checked the report for accuracy.
Norman D. Bates, Esq.: President, Liability Consultants, Inc., 591 Sugar Rd., Bolton, MA 01740; www.liabilityconsultants.com.
Alan Kaminsky, Esq.: Partner, Lewis Brisbois Bisgaard and Smith, LLP, 199 Water St., New York, NY 10038; www.lbbslaw.com.
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