“Digitally store documentation when at all possible,” advises Justine Baakman, an associate in the Philadelphia and Morristown (NJ) offices of Freeman, Mathis & Gary. Baakman focuses her practice primarily in the areas of employment, HOA, commercial, construction, and professional liability litigation in both state and federal courts. “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 okay. 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 benefiting 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 5 years.
“Often, you might get a case where the lawsuit may get filed, but [the contractor] may not be aware if 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.