Smile, You're on Camera

Video Surveillance 2

Are you ready for your close up? How video footage can help mitigate risk.

By Amanda J. Podlucky

The hospitality industry is no stranger to liability claims. From slip and falls to negligent security claims, incidents that occur at hotels, bars and restaurants continue to make up a large portion of negligence claims and lawsuits. While not all venues have surveillance systems and security cameras set up throughout the premises, the existence of surveillance footage, or lack thereof, can play a pivotal role in defending against these claims.

A venue may be unaware of an incident until a formal claim is made, or in some instances, after a lawsuit is filed. In those situations, surveillance footage could be lost or destroyed depending on the delay between the incident and the claim. If that is the case, and neither ownership nor management was notified about an incident in a timely manner, it is unlikely that any penalty would be imposed. The preservation of surveillance footage is required only where a claim or suit is foreseeable.

Once the venue is notified of an incident, preservation becomes essential. If there are no cameras on the premises or in the area where an incident occurred, such as a private guest room or restroom, early documentation concerning the lack of available footage is important. Whether this is documented in an incident report or in writing to your insurance company during the early stages of the investigation, making a note that surveillance footage did not exist or that there were no working cameras onsite will save considerable time and money. If there are cameras in or around the area of the alleged incident, it is important to promptly capture and preserve the data.

Even if a guest denies injury at the time, or suggests he or she will not make a claim, it is still critical to immediately preserve all relevant footage. It is very possible that he or she may claim to have developed pain later on, or the individual may not want to admit an injury out of embarrassment at first but then change his or her mind later; it may also be the case that the person could seek out an attorney after the fact in an attempt to recoup damages.

Preserving Footage

If onsite employees do not know how to preserve both the data and any other program needed to view or read the data, then IT, risk management or security employees may be able to assist. If the video surveillance data is monitored by a third party or kept at an offsite location, personnel at that location should promptly be notified to take steps to save it.

Immediately after learning of an incident, all relevant cameras and camera angles should be checked not only for the incident, but also for any footage of the claimant from the time he or she entered the premises. The claimant's activities prior to or after the incident could prove to become relevant during the course of investigating the claim; similarly, if the incident is not captured, any cameras showing the areas around the location of the alleged incident before and after it occurred could also prove to be relevant.

Video Surveillance 1While preservation of available footage that shows what occurs on the property is undoubtedly important when faced with a negligence claim, preservation of footage concerning what did not occur on the property can be equally important. For example, if a claimant is alleging serious injuries from a slip and fall, but no camera angle captured the fall or any specific substance on the floor where the fall occurred, any footage showing employees walking in the immediate area of the incident just prior could help negate the allegations of the substance, or notice of the substance.

If a claimant in a negligent security matter claimed that there was insufficient security, footage of security guards or officers routinely making their rounds on the premises could be equally helpful. Similarly, footage of the premises could also help establish sufficient lighting, adherence to cleaning or inspection procedures or perhaps the frequency of other patrons passing through the same area without incident.

Oftentimes, claimants look to the venue's policies and procedures when attempting to establish negligence, to identify any deviation from those standards. Having surveillance footage to help establish compliance with the policies and procedures can often help establish the strongest defenses against those claims of negligence. If you are fortunate enough to have video footage of the actual incident, preservation is not only helpful to defend against the claims, but required. While preservation of all incidents that occur may not be necessary, it is better to err on the side of caution, particularly when the system will automatically overwrite or delete data after a set time.

If your internal system allows only 30 days to preserve footage before it is lost, and the claimant's attorney requests preservation of the video 31 days later, failing to save the required data could prove costly down the road. Failing to preserve a surveillance video could make an otherwise defensible claim your biggest nightmare. All footage surrounding the incident, or alleged time of the incident, should be captured and saved to a disc or other external device such as a USB flash drive, together with any necessary viewing software. It should be forwarded to the risk management department, if applicable, or kept on site for the length of your venue's statute of limitations (timeframe for the claimant to assert a claim).

There is no question that surveillance footage can be the strongest weapon in your defense arsenal, when properly preserved, managed and stored. Overlooking this step can prove detrimental in defending against claims in the long run. Establishing procedures for identifying, saving and storing videos is critical, and all management staff should be properly trained to handle these situations accordingly.

Amanda J. Podlucky is a shareholder in the Orlando office of Marshall Dennehey Warner Coleman & Goggin, a civil defense litigation law firm. A member of the Casualty Department, she defends clients in matters involving personal injury, negligent security and related general liability claims. She may be reached at (407) 420-4396 or ajpodlucky@mdwcg.com.

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