Saturday, January 31, 2009

Inclement Weather and Retail/Hospitality Operations: Have A Plan In Place

When Wintery Weather Comes, Associates Need a Clear, Easy Way to Know, "Do I Need to Come Into Work?"

by Christian Stegmaier

A local weatherman has made some news around here with the projection that South Carolina could be in store for a blizzard early this week (see the picture from Chesterfield County on the right – from the 1973 blizzard in South Carolina). To his credit, he stated the chances for such an event were slim; nevertheless, the very mention of snow down here has caused everyone to become very excited.

With the possibility of snow, people get to thinking, “Do I need to come into work?” Anticipating that your retail/hospitality associates will have the same question, it’s important to have a game plan in place prior to such an event to avoid any ambiguity when winter weather does come.

Our law firm has a very good policy, which every employee knows. We look to what state government does. We have three offices: Columbia (Richland/Lexington Counties); Greenville (Greenville County); and Myrtle Beach (Horry Country). Our policy is this: If the governor closes or delays the opening of state offices in any of those counties, we follow the same directive. That way, there’s no need to try to call or email every employee about whether our firm will be open or try to get word to the television or radio station about what we’re going to do. Government closings or delays are easily obtainable on the television, radio, and internet. By having a stated policy that facilitates an easy answer to the question “Are we going to be open?,” our folks are able to easily determine what the expectations are regarding whether they need to come in or not.

Hospitality: Of course, there are some employees in the hospitality context that are essential to operations no matter what the weather does. If you have guests in your hotel, there needs to be at least some staff on hand to keep the operation going. The same thing can arguably be said for food service establishments located near interstates or other well traveled roads. Everybody can’t stay home if the plan is to stay open. Accordingly, in addition to having a stated winter weather policy, there needs to be a plan in place that designates those employees who are “essential” and need to be at the property even if 6 inches of snow are on the ground. Further, there should be a back up plan when employees designated as “essential” can’t get into work. Finally, there are some winter weather events that will make operations impossible. When that scenario occurs, an emergency exists. Your hospitality-related entity – especially hotels - therefore needs an emergency plan in place that sets into motion an orderly and safe evacuation of guests and the secure closing of the property.

Retail: For retailers - unlike the hotel example - there are no guests staying in your establishment. Accordingly, the duty to stay open is lessened. Nevertheless, being closed means a loss of revenue. Therefore, the inclination is to be open if possible. However, as stated above, there needs to be a clear plan in place, which outlines your expectations regarding operations in wintery weather. Don’t have your people wondering. Further, if you are in a tenant in a shopping complex, be sure to know what the landlord’s winter weather protocol is. If the shopping center or mall is going to be closed, it will likely make your operations difficult, if not impossible. Plus, if the media announces the shopping center or mall is closed, many of your associates will assume this announcement pertains to them and will not report. Again, the important thing is to plan, coordinate, and communicate so that there is no ambiguity about operations during a winter weather event.

Finally, regardless of what your business is, there needs to be an understanding with employees that they are permitted to use discretion regarding travel on wintery roads. Some roads may be more passable than others. Some employees are confident to travel, while others aren’t. It is not a good policy to force employees to come to work when – in their judgment and discretion – traveling from their home to your establishment would be treacherous and hazardous to their health and safety.

Saturday, January 24, 2009

Keeping Your Opinions via Status Updates or Tweets to Yourself: The Dangers of Being Too Candid on Twitter or Facebook

by Christian Stegmaier

Facebook and Twitter are social networking and micro-blogging services that keep people connected. They have become a part of millions of people’s lives on an everyday basis. They are in many ways very useful; however, there is a danger to them career-wise if misused.

Facebook, once the exclusive domain of college students, has over 150 million active users. The post-graduate demographic is the fasest growing bloc of users. Facebook is many things: a high-school/college reunion; a real-time updated address book; and, increasingly, a marketing tool for self-promoters via use of “status updates” and other posts.

Twitter, a newer application, allows its users to send and read other users' updates (known as “tweets”) via text-based posts of up to 140 characters in length. Millions of users – including political campaigns, corporations, and governments – routinely use Twitter to provide their “followers” with up-to-the minute status updates. Tweeter also has become a tool to generate instant news. When US Airways flight 1549 landed in the Hudson River after takeoff in New York City, Janis Krum, a passenger on one of the ferries that rushed to help, took a picture of the downed plane as passengers were still evacuating and tweeted it before traditional media arrived at the scene.

In the age of openness, more and more people are employing these services to keep their friends, family, colleagues, and others instantly apprised of their current status. Often, these status updates or tweets contain editorizing with very little filter. With so many eyes potentially on what these updates contain, a user’s commentary can be detrimental to his or her professional career. One such tweet made news on the internet this week, which proves to be a useful teaching lesson for watching what you put out there, no matter how trivial you think the update is.

James Andrews was flying into FedEx global headquarters in Memphis to present on digital media to the worldwide communications group at FedEx people on behalf of his employer advertsing agency. Upon arrival in Memphis, something prompted him to tweet:
True confession but I’m in one of those towns where I scratch my head and say “I would die if I had to live here! 2:58 PM Jan 14th

A FexEx employee picked up on the tweet. The employee then in turn emailed the same to FedEx corporate vice presidents, directors, and all management of FedEx’s communication group, as well as Andrews’ bosses at his agency. Andrews later received the following email from FedEx:

Mr. Andrews,

If I interpret your post correctly, these are your comments about Memphis a few hours after arriving in the global headquarters city of one of your key and lucrative clients, and the home of arguably one of the most important entrepreneurs in the history of business, FedEx founder Fred Smith.

Many of my peers and I feel this is inappropriate. We do not know the total millions of dollars FedEx Corporation pays [your agency] annually for the valuable and important work your company does for us around the globe. We are confident[,] however, it is enough to expect a greater level of respect and awareness from someone in your position as a vice president at a major global player in your industry. A hazard of social networking is people will read what you write.

Not knowing exactly what prompted your comments, I will admit the area around our airport is a bit of an eyesore, not without crime, prostitution, commercial decay, and a few potholes. But there is a major political, community, religious, and business effort underway, that includes FedEx, to transform that area. We’re hopeful that over time, our city will have a better “face” to present to visitors.

James, everyone participating in today’s event, including those in the auditorium with you this morning, just received their first paycheck of 2009 containing a 5% pay cut… which we wholeheartedly support because it continued the tradition established by Mr. Smith of doing whatever it takes to protect jobs.

Considering that we just entered the second year of a U.S. recession, and we are experiencing significant business loss due to the global economic downturn, many of my peers and I question the expense of paying [your agency] to produce the video open for today’s event; work that could have been achieved by internal, award-winning professionals with decades of experience in television production.

Additionally Mr. Andrews, with all due respect, to continue the context of your post; true confession: many of my peers and I don’t see much relevance between your presentation this morning and the work we do in Employee Communications.

Pretty scathing response. Moreover, it’s hit the internet and has been read worldwide – that’s insult to injury. What’s worse is the obvious fence mending that had to be done instantly between the two companies to preserve the multi-million dollar relationship.

As Al Pacino said in “Any Given Sunday,” life is a game of inches. A small mistake like this in another scenario could cost a vendor or supplier a key client and the accompanying revenue.

To restate the admonition given by FedEx to Andrews: “A hazard of social networking is people will read what you write.” With that said, common sense needs to be employed by Facebook and Twitter users, especially in the business context. Don’t write about your customers or business partners. Don’t post stupid pictures or generate profiles that make you less than professional - no one has confidence in a 35-year-old who acts like a college freshman. Operate as if everything you write or post on profiles will be published on the front page of your newspaper or reported that night on the television. And think to yourself whether your stream of consciousness status updates or tweets are necessary and going to reflect well on you.

As your grandmother might would say, “If you don’t have anything nice or productive to post, keep your tweets to yourself.”

P.S. I really like Memphis. You can take me to Rendezvous anytime for a slab of their famous ribs.

Hat tip to for the story, “Online Diplomacy: The Famous Fedex Twitter/Email Exchange” (January 17, 2009):

Thursday, January 22, 2009

Getting It In Writing — Making Sure Your Retail or Hospitality Company Has Defense & Indemnity and Additional Insured Agreements with Your Vendors

by Christian Stegmaier

On a very frequent basis, our retail and hospitality clients are sued for something they didn’t do. Stated more clearly, while accidents may have occurred on their properties or guests might have been injured by products sold at their locations, our clients weren’t directly responsible for the alleged damages incurred by the claimants bringing suit. Instead, vendors doing business with our clients are the true culpable parties. It is something they either did (or didn’t do) that triggered the litigation.

When defending a claim such as a slip and fall or a food adulteration allegation for our retail and hospitality clients, it is our general practice to evaluate whether there is a third party to whom the claim can be tendered. Accordingly, one of the first inquires we make is whether there is vendor that contracted to provide a service or product, which is basis of the suit. If the claimant slipped and fell on an improperly waxed floor, did our client contract with a vendor to maintain the floors? If the claimant broke a tooth on a bone in a hamburger, where did our client buy the meat? If the claimant fell down allegedly ill-constructed stairs, then who was the architect and contractor on the project?

When the vendor arguably responsible for the claim is located, our next question is: Was there a vendor agreement and/or an endorsement on the vendor’s insurance policy in favor of our client? The existence of either one is extremely helpful when attempting to tender a claim to a vendor.

A vendor agreement is one typically signed between the principal (e.g., hotel, restaurant, club, etc.) and the vendor. This agreement lays out each party’s duties and responsibilities to the other. A term often found in these agreements is a “defense and indemnification” clause. Such a clause protects the principal from the claims created by the tortious acts of the vendor by entitling the principal to a legal defense at the vendor’s expense in the event of suit and requiring the vendor to pay the costs associated with a settlement or judgment. Your business should always have such an agreement with any vendor that provides goods or services to you.

In addition to a “defense and indemnity clause,” retailers and hospitality-related entities should obtain an express agreement with their vendors, which makes them “additional insureds” on their vendors’ insurance policies. Further, such an agreement mandate the vendor’s policy is primary with the principal’s policy remaining secondary or excess.

This agreement should require the vendor obtain coverage for not only general liability, but also workers’ compensation and automobile liability. Moreover, your organization is well served by ensuring the vendor provides you with proof of insurance – better safe than sorry. Finally, in the event the vendor or its insurance carrier refuses to honor this agreement, your organization may possess a bad faith claim against the carrier.

“Defense and indemnification” agreements, as well as “additional insured” agreements are valuable tools in the arsenal of a retail or hospitality entity defending a claim for the tortious acts of a vendor. Your organization should review its files to ensure such agreements with its various vendors are in place. If they are not, it should work to do so.

Tuesday, January 20, 2009

From "How Text Messaging and Facebook Can Get You in Legal Trouble"

by Christian Stegmaier

We've previously issued client advisories regarding the danger of employee YouTube posts to brand imaging. Attached is a link regarding a corollary concern for retailer and hospitality-related entities: The Dangers of Text Messaging and Facebook Communications.

From, a website for IT executives:

As detailed within the recently-amended Rule 26 of the Federal Rules of Civil Procedure, the parameters of discovery have opened up tremendously to include electronic data sources. Messages generated using corporate hard and software - including text messaging, emails, etc. - are such sources. We'll write soon regarding how to manage such discovery requests, as well as doing what you can to control unfavorable data from being generated in the first place via best practices concerning corporate communications platforms.

Monday, January 19, 2009

The Applicability of the “Open & Obvious” Defense in Inclement Weather Slip and Fall Cases

By Christian Stegmaier

The weather folks are projecting snow for most portions of South Carolina tomorrow (Tues, Jan. 20). Along with inclement weather comes the increased chances of slip and fall incidents in the retail/hospitality setting due to the greater presence of moisure on walking surfaces. Accordingly, we take this opportunity to reprise a client advisory from 2005 regarding slip and fall cases arising from inclement weather:

Slip and fall incidents are the bane of the retail industry. Often, these incidents arise on days with inclement weather when floors at entrances can accumulate moisture due to patrons and employees tracking water in from the outdoors. Not surprisingly, claimants (and their lawyers) frequently take the position the establishments where the falls occurred are completely responsible for the subsequent alleged injuries and demand high dollar recovery.

When making these demands, these claimants often close their eyes to the fact they knew the weather was inclement and that common sense and experience would tell them precipitation sometimes gets tracked inside and may be in their pathway. In other words, these claimants ignore the fact water on the floor during a rainy day is an “open and obvious” condition, which they should have taken steps to appreciate and avoid.

Within recent times, the federal district court for the District of South Carolina issued a decision, which gives teeth to the “open and obvious” defense in inclement weather slip and fall claims. This opinion, Hackworth v. United States, 366 F. Supp. 2d 326 (D.S.C. 2005), may prove to be of great assistance to retailers and hospitality-related establishments defending these type of claims.

In Hackworth, the federal district judge recognized that recovery for injuries arising from an “open and obvious condition” is not permitted in South Carolina. The judge further held that rain water at the entrance of a store on an inclement day is an “open and obvious condition.” As a result, the claimant was precluded from recovery via the defendant’s motion for summary judgment.

demonstrates a court’s recognition that there are hazards that sometimes appear — such as precipitation from inclement weather — which are out of the control of retailers and also constitute obvious conditions that a reasonable customer of ordinary experience should anticipate and avoid. Hackworth is a welcome decision for retailers in an era of increasing litigiousness by personal injury claimants.

Saturday, January 17, 2009

Tough Budget Year Snares South Carolina Judiciary

Cost Saving Measures Include Suspending Judges Rotating Through the Circuits, Support Staff Hiring Freezes, Reduction in Technology Spending

by Christian Stegmaier


With the economy slowing, state government revenue has as well become sluggish. As a result, agencies have actively taken measures to tighten their belts. This means a reduction of services, staff furloughs and layoffs, and hiring freezes. The South Carolina Judicial Department, the state agency responsible for the administration of the judicial branch, has not been exempted from the realities of the current budget situation.

Since last fall, lawmakers and state budget officials had cut funding to the judiciary by almost $7.4 million. These cuts were in addition to the $1.68 million reduction in funding by the General Assembly for FY 09. The Legislature as well eliminated $2.55 million in one time funding for operation expenses including travel. All of these reductions will now mean the following as a temporary measure:

- Judges’ travel will be eliminated as much as possible.
- Law clerks will not be reimbursed for travel when their judges do travel.
- Judges’ office expense allowances will be cut in half.
- Staff vacancies will not be filled until an amount of time equal to the payout of annual leave has passed.
- Vacant positions or newly vacated positions cannot be filled without approval.
- Additionally, funds that had been reserved for technology, building repairs and renovation, and program development will be allocated elsewhere to make up the significant shortfall.

As difficult as these measures are for Judicial Department personnel, these changes will potentially also have significant ramifications for litigants and their counsel. Obviously, when departing staff will not be replaced and essential personnel like law clerks have their duties reduced, a slowdown in the handling and disposition of the caseload may likely occur.

Further, the State Constitution created our judical circuits. Historically, our trial judges have rotated through the circuits on a routine basis. There is a benefit to both the bench and bar by having this rotation. That benefit is obviously eliminated if the circuit judges are unable to travel.

Finally, our judiciary has made great strides within recent years in the area of technology. Among other improvements, rosters have been digitized and made available via the Internet and our courtrooms are being remade to accommodate the technology trying a case now requires. Not having these funds available for the foreseeable future will hamper the expansion of these efforts, which in turn makes case handing and trial for counsel that much more challenging.

We have hope upon hope the budget situation for the Judicial Department improves exponentially in 2009 so that the administration of justice in South Carolina returns to a state of normalcy and the strides in technology can continue.

Exxon Shipping Company v. Baker: A New Measure of Punitives in the Non-Maritime Context?

by Christian Stegmaier

We recognize Exxon Shipping Company v. Baker is not exactly new news in the legal realm. It was decided last June. However, this blog is relatively new and we're here to educate and inform our clients and friends and we believe Exxon is potentially a very important case. The following is a reprint of a client advisory from last summer:

On June 25, 2008, the United States Supreme Court in Exxon Shipping Company v. Baker, 2008 WL 2511219 ruled punitive damages in this maritime dispute should be determined using a 1:1 ratio calculation. As a result of this holding, the Court held the maximum award of punitive damages allowed to the plaintiffs was limited to the jury’s award of $507.5 million in compensatory damages. The plaintiffs had previously secured a $5 billion punitives award in the district court, which had been reduced on appeal at the Ninth Circuit to $2.5 billion.

Citing punitive damages as an “inherent uncertainty in the trial process,” the Court studied judgments of judges and juries in cases ranging from malice and avarice to recklessness and gross negligence and concluded that the median ratio of punitive to compensatory awards has remained less than 1:1. This discovery following its quantitative analysis became the basis for the Court’s ultimate holding.

In addition, the Court noted a 1:1 ratio was consistent with State Farm Mutual Automobile Insurance Company v. Campbell, 538 U.S. 408 (2003), finding “few awards exceeding a single-digit ratio between punitive and compensatory damages, to a significant degree, will satisfy due process .…” Id. at *24.

Prior to reaching its disposition, the Court examined two other solutions to the punitive damages dilemma: (1) jury instructions; and (2) quantified limits. The Court provided a rationale for dismissing both of these approaches.

The Court opined jury instructions can only go so far. Specifically, the Court stated it was “skeptical” jury instructions are the best insurance against unpredictable outlier punitive awards in light of its experience with attempts to produce consistency in the analogous business of criminal sentencing.

With regard to quantified limits, the Court rejected the option of setting hard-dollar punitive caps because there is no standard tort or contract injury, thus making it difficult to settle upon a particular dollar figure as appropriate across the board. The Court further determined a judicially-selected dollar cap would carry the serious drawback that the issue might not return to the docket before there was a need to revisit the figure selected.

While Exxon is a maritime case, the legal principles employed by the Court to arrive at its ultimate holding are arguably applicable to non-maritime cases. In an order issued just 5 days after the Supreme Court’s decision, the United States District Court for the District of Western Pennsylvania recognized in a § 1983 case that “[a]lthough Exxon is a maritime law case, it is clear that the Supreme Court intends that its holding have a much broader application.” Hayduk v. City of Johnstown, 2008 WL 2669477, 41 n. 46 (June 30, 2008) (citing Exxon at *21). Accordingly, it is anticipated that Exxon will enter the decision-making analysis of jurists facing disputes pertaining to punitive damages awards nationwide within short order.

We note the Supreme Court does expressly limit the aegis of its Exxon holding in cases where the defendant’s alleged offensive conduct was neither intentional nor malicious. Exxon at *21-22. Further, the fact a plaintiff may have suffered modest economic harm does not rescue a defendant in such circumstances. Specifically, the Court observed “[l]ow awards of compensatory damages may properly support a higher ratio [of punitive to compensatory damages] if, for example, a particularly egregious act has resulted in only a small amount of economic damages,” and endorsed the proposition that “an award of nominal damages ... is enough to support a further award of punitive damages, when a tort, ... is committed for an outrageous purpose, but no significant harm has resulted.” Id. at *13 (citations omitted). Accordingly, where there is “modest economic harm,” but “outrageous” or “egregious” conduct by the defendant, a trial court and subsequent reviewing appellate tribunal may likely be loathe to apply Exxon.

In a term with many notable cases, the Supreme Court’s decision in Exxon may yet be the most important in the realm of civil litigation. Accordingly, where it can be demonstrated that the defendant’s conduct was not intentional, malicious, outrageous, or egregious, a defendant in a non-maritime claim arguably can look to Exxon as a mechanism for relief from a punitive damages award, which exceeds a 1:1 ratio with the actual damages award.

Thursday, January 15, 2009

Don’t Be the Hero: Training Associates to Avoid Confrontation with Robbers

By Christian Stegmaier

Within recent times, I read in the newspaper about an associate at a local retailer had been injured when attempting to stop a robbery. The store had been held up and the associate trailed the robber out of the store in an effort to get the stolen money back. The robber beat up the associate upon being confronted. The associate needed to be hospitalized.

There are points in time in our lives where bravado is needed: asking someone out on a date, bungee jumping, stock car racing, etc. A hold-up is not such a time. Associates don’t need to be the hero when someone comes unto the property, takes money at gun or knife point, and then leaves. Associates should be trained that no amount of money is worth their life and well-being.

As a result of this associate's attempt to save the day, the retailer now has a workers’ compensation claim. In addition to the charges related to her hospitalization and lost wages, it is conceivable her claim could intensify if she suffers any demonstrable permanent injuries. The retailer could be looking at a very expensive claim.

It must be further noted that a team member’s efforts to retrieve stolen money could result in civil liability. A guest/patron struck by a flying bullet or punch would indubitably bring suit against the retailer. Also, the alleged use of disproportionate force on the robber - such as shooting him in the back in the parking lot - could lead to suit.

Avoid potential liability: Confer with security experts regarding proper responses to robbery; develop protocols; train associates in these protocols; and continue to train them in the future.

Tuesday, January 13, 2009

Stegmaier Appointed Adjunct Professor at the University of South Carolina

Christian Stegmaier, voting shareholder at Collins & Lacy, PC, has been appointed as an adjunct professor at the University of South Carolina's nationally-recognized College of Hospitality, Retail, and Sport Management. Stegmaier will be teaching "Hotel & Restaurant Law" (HRTM 357) during the spring 2009 semester.

Says Stegmaier, "We spend a lot of time defending hotels and food service establishments; accordingly, I hope to share with the students a practical, common-sense approach to this area of the law in the effort to assist them once they graduate and enter the hospitality workforce as managers."

Friday, January 9, 2009

Successfully Defending the Food Liability Claim By Demonstrating a Commitment to Food Safety

By Christian Stegmaier

With more lawyers and less restrictions on legal advertising, the numbers of lawsuits have dramatically risen. A target of much of this increased litigation has been the hospitality industry, including food service establishments.

Among the influx of lawsuits has been the rise of food adulteration claims. From allegations of foreign objects to too hot coffee to improperly prepared food, claimants are pursuing money damages from food service establishments for a multitude of reasons.

A partner of mine has a saying about why plaintiffs bring lawsuits: “Don’t let anyone tell you differently, it’s always about the money.” After having been a lawyer for almost 10 years, I will tell you he is right.

In many – if not most instances – when a food service establishment receives a complaint about its product from a patron, it tries to do the right thing. The establishment may refund the price of the patron’s purchase, offer certificates for free future dining, or even a cash resolution. If there are “damages,” like a doctor’s or dentist’s bill, the establishment may even offer to pay for the costs incurred by the patron. For many claimants, the offers of free meals or the payment of bills is enough. For others, however, an establishment’s overtures come nowhere close to what they believe their claims are worth. Instead, these patrons (and their newly acquired personal injury lawyers) have stars in their eyes and see the chance for further recovery, including payments for “pain and suffering” or punitive damages.

For a food service establishment in a plaintiff’s crosshairs, the name of the game is to defend its practices, its products, and its reputation. When trial by jury is the resolution strategy adopted by the food service establishment, it better be reasonably confident that it can win. An ugly loss, which may create tremendous adverse publicity, may be the death knell for the establishment. The marketplace is saturated with competitors. A reputation that an establishment sells a bad product will allow others to move in on its market share.

In a food claim, an establishment should anticipate that its entire operations will be on trial. It can expect a crafty plaintiff’s lawyer to explore the methods distributors are selected, the way food is stored and handled, and the means the establishment employs to prepare and serve its product. Counsel is looking for chinks in the armor to demonstrate to a jury the establishment is less than zealous in protecting the health and safety of the consuming public.

The establishment must be prepared for such an attack. It therefore must be able to demonstrate the creation, implementation, and enforcement of industry-recognized food safety protocols, which would include a program of periodic training. Such a demonstration is important because it shows to a jury the establishment is not a “fly-by-night” operation; rather, through evidence of training and procedures, the establishment is able to make clear it takes food safety seriously.

By demonstrating its commitment to proper food safety, the establishment puts itself in the position to achieve one of two outcomes: Having a jury disbelieve the plaintiff’s story completely based on the lack of a possibility of occurrence (e.g., a claim of glass in a ice cream sundae is rejected when it can be shown the establishment used no glass in its operations); or, where liability is proven, limiting a finding of fault to simple negligence rather than “willful or wonton” conduct, which opens the door to an excessive special damages verdict or punitive damages award (e.g., the jury finds that the plaintiff’s injuries are the product of a simple mistake rather than a calculated disregard for the safety of patrons). The more a jury believes a food service establishment works hard to run its operations cleanly, safely, and properly, the less of a chance there will be for an adverse outcome at verdict time.

Wednesday, January 7, 2009

Top 10 Things A Retailer/Hospitality-Related Entity Should Know About Defending A Personal Injury Lawsuit

by Christian Stegmaier

1. Have a Plan in Place to Respond to and Adequately Document Alleged Claims. The ability of your insurance company, risk management, and counsel to adequately investigate and respond to an alleged claim is dependent upon them getting accurate and complete information about the claim in a timely matter. An operator’s ability to ensure this information transfer happens is to have a plan in place to properly respond to events giving rise to potential claims, which are known throughout the organization and are consistently applied.

2. Have a Risk Management Department. An operator should have a person or persons dedicated to risk management activities, which would include responding to claims. All too often, many operators don’t have a formal risk management program in place. This can spell disaster when a claim with potentially large exposure arises. Evidence goes missing, witnesses disappear, and the defense of the claim falls apart. Don’t let that happen – have a trained staff in place to deal with risk management issues.

3. Promptly Notify Your Risk Management/Insurance Carrier of Known Claims. Give yourself and a chance when claims arise – notify your risk management and/or insurance carrier ASAP when an event occurs, which could translate into a claim. More often than not, the insurability of a claim hinges on timely notice of the claim. Don’t prejudice yourself by needlessly holding onto information about a potential claim. Further, the sooner risk management and the carrier know about a claim, the quicker they can investigate the matter and determine issues pertaining to liability and exposure.

4. Send All Evidence and Other Important Documentation to Your Risk Manager/Insurance Carrier ASAP. Events giving rise to potential claim generally trigger the creation of various materials such as incident reports, contemporaneous notes taken by employees, videos, and photographs. If you’ve generated these materials, promptly send them to your risk management and/or insurance carrier. There is little that is worse for an attorney defending a claim when it is revealed late in the litigation that evidence exists, which has never been produced by the operator.

5. You’ve Got Video? Preserve it! Claims can frequently be resolved quickly, easily, and cheaply if video surveillance of an alleged event that is favorable to be operator can be produced to the claimant or his/her counsel. Further, savvy plaintiff’s attorneys know that many businesses have video surveillance. Avoid problems in discovery in a subsequent lawsuit by being able to produce whatever video may in your possession.

6. Got Witnesses? Get Their Info! The statute of limitations in personal injury claims can run for many years. Memories fade and information gets misplaced. In the event of an incident, which could result in a claim, indentify pertinent witnesses and get contact information as well as a general idea of what they observed/heard. Consult with competent counsel to determine the appropriateness of getting written witness statements because these documents are often discoverable in litigation.

7. Stick to the Basics in Incident Reports. In most jurisdictions, incident reports are discoverable in litigation. Unless these reports are being created by an attorney or at his/her direction under the work product doctrine, generally limit reporting to names, addresses, telephone numbers, and a general description of the alleged event – as reported by the claimant. Keep ancillary matters, such as commentary about how the alleged event could have been avoided, out of the document.

8. Have a Lawyer Who Knows What He or She is Doing. The days of the general practitioner are by and large gone. Relying on the attorney who drew up your incorporation papers to advise and defend you in a complex personal injury lawsuit is typically an unwise proposition. Develop a relationship with a local attorney in tune with hospitality-related litigation who you can turn to in the event of a claim that develops into a lawsuit.

9. Tell Your Insurer You Want Your Attorney to Defend You in a Lawsuit. Many - if not most - retailers and hospitality-related entities have a fairly sizeable deductible or self-insured retention on their general liability claims. This circumstance generally enables the operator to exert some control over the selection of counsel in the event of litigation. If you have a relationship with an attorney you trust, tell the carrier of this relationship along with the request/directive that your counsel be hired to defend the suit to resolution. More often than not, the carrier will comply with this request/directive.

10. Don’t Let Preconceived Notions About a Claim/Claimant Prejudice Your Defense of It. It is true that many claims made against operators have dubious aspects to them. However, once a claim falls into suit, the rules of discovery apply. This means that however doubtful you think the claim is, you nevertheless have the duty to answer requests posed to you accurately, completely, and in a timely manner. Don’t give a plaintiff’s attorney the ability to allege discovery abuse to the judge because your preconceived notions about the claim clouded your responsibility to participate properly in the litigation. Avoid creating ancillary issues in litigation – they just get you into trouble.

Saturday, January 3, 2009

Historians Battle Wal-Mart Over Key Virginia Civil War Site

South Carolina Also the Site of Many Historic Battlesites - A Consideration for Developers as the State Transitions from Rural to Urban

Curiously, while South Carolina was the scene of many Civil War and Revolutionary War battles, you seldom hear about disputes in our state similar to those that arise from time to time in Virginia between developers and historical preservationists. The latest scrape involves a staging area used by the Union Army prior to the 1864 Battle of the Wilderness, which was the first meeting of Lee and Grant on the battlefield. Wal-Mart seeks to build a Supercenter on this site. Preservationists have other ideas.

While such disputes are rare news in South Carolina, as the state continues to transition from largely rural to largely urban, differences between developers and preservationists regarding land use of historical sites could begin to arise. Retailers and hospitality-related entities should be mindful of public sentiment about such sites as they draw up plans to build new locations here in the Palmetto State.

Today's Drudge Report outlines the dispute:

LOCUST GROVE, Va. (AP) - Wal-Mart wants to build a Supercenter within a cannonshot of where Robert E. Lee and Ulysses S. Grant first fought, a proposalthat has preservationists rallying to protect the key Civil War site.

A who's who of historians including filmmaker Ken Burns and Pulitzer Prize winner David McCullough sent a letter last month to H. Lee Scott, president and CEO of Wal-Mart Stores Inc., urging the company to build somewhere farther from the Wilderness Battlefield.

"The Wilderness is an indelible part of our history, its very ground hallowed by the American blood spilled there, and it cannot be moved," said the letter from 253 scholars and others.

Wal-Mart and its supporters point out that the 138,000-square-foot store would be right behind a bank and a small strip mall, a full mile from entrance to the site of the 1864 clash that left thousands dead and hastened the war's end.

Local leaders also want the $500,000 in tax revenue they estimate the big box store will generate for rural Orange County, a gradually growing area about 60 miles southwest of Washington.

"In these economic times, the fact that Wal-Mart wants to come into the county is an economic plus," said R. Mark Johnson, a tire shop owner and chairman of the county's board of supervisors. "This is hardly pristine wilderness we're talking about."

Grant's Union troops were headed to Richmond on May 4, 1864, when they confronted Lee's Confederate Army of Northern Virginia. The Battle of the Wilderness involved more than 100,000 Union troops and 61,000 Confederates. The fighting, according to National Park Service estimates, left more than 4,000 dead and 20,000 wounded.

Some 2,700 acres of the Wilderness Battlefield are protected as part of the Fredericksburg and Spotsylvania National Military Park.

Preservationists regularly square off against developers in Virginia, where much of the Civil War was fought.

This dispute, however, has stirred an outcry similar to the one in 1994 over The Walt Disney Co.'s plans to build a $650 million theme park within miles of the Manassas Battlefield. The entertainment giant bowed to public pressure and abandoned the project.

Bentonville, Ark.-based Wal-Mart, which opened nearly 200 stores in the U.S. in 2007, said it studied a lengthy list of sites in Orange County before settling on the spot near the battlefield and its gentle hills dissected by neat footpaths.

"We recognize the significance of the Wilderness Battlefield, but we are not building on the battlefield," said Keith Morris, a spokesman for the world's largest retailer.

Preservationists argue the store site is still significant because it was used as a staging area by Union troops.

"Is it blood-soaked ground? No, but it is a part of the battlefield," said Jim Campi, a spokesman for the Civil War Preservation Trust, which lists the Wilderness Battlefield as endangered.

Supervisors will have the final say, after county planners decide if the retailer should be granted a zoning variance. Hearings likely will be scheduled in February and March.

Supervisor Teri Pace said there are "more appropriate places" in the county for Wal-Mart to build. She envisions an economic development plan that taps the county's history - including President James Madison's restored home, Montpelier - and its agricultural heritage, which now includes several popular wineries.

"If we define ourselves and promote ourselves as something different, with tourism and agriculture, we really have huge opportunities here," Pace said.

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