After an Accident Happens

 There’s Been an Accident…Now What?

If you’ve been in the propane business more than a couple of years, you’ve heard
a lot of safety and accident prevention presentations. Employers, insurance companies,
state agencies, NPGA, NFPA…they all emphasize accident prevention. And that’s the
way it should be…we all want to stop a problem before anyone gets hurt or anything gets
damaged.

But what happens if, despite all of our training and precautions, an accident
happens anyway? What should you do first? And second? Who should you call? What
should you say? What should you do when reporters show up in your lot? Or when
someone from a government agency starts demanding access to your records?
No two accidents are alike, and you will need to use your judgment to apply some
general recommendations to your particular operation, but let’s look at a few key issues
that arise whenever accidents happen, and suggest a few possible responses.

I. The Absolute First Step – Help Anyone that is Hurt
In any accident, make certain that your employees know that the very first
concern is to help anyone that is hurt. Forget about cause or liability or insurance
for now; make sure that everyone is accounted for and taken care of. Post
emergency numbers by your phones and in your vehicles, and store them in the
memories of cell phones. Do a “dry run” with your people during a safety
meeting, and see how quickly they can find the numbers to call for an ambulance.
Install and clearly mark decent first aid kits and fire extinguishers. Encourage
employees to learn CPR and basic first aid. The goal is to get the best care for
accident victims in the shortest time possible.

II. Step Two – Eliminate the Hazard if Possible
If the accident occurs at your property, or involves your vehicle, or your people
are at the scene, do everything that can safely be done to eliminate the risk. If a
bobtail is leaking LPG, get to the remote and activate it. If a customer’s system
has a leak, shut down the tank and evacuate the building. If a building is on fire,
and the cylinders outside are not yet directly involved in the fire and are not
venting, shut them off and, if possible, disconnect them and move them away.

Do NOT try to become a firefighter. While you may have special knowledge
regarding LPG, you do not have the equipment, the training or the back-up
necessary to fight a fire. But if you can safely act to prevent further harm, do so.

Certainly, you can help responding emergency personnel when requested. Many
departments would appreciate your help in locating shut-offs, understanding a
venting cylinder, or helping to direct the placement of hose streams on tanks near
fires. Help them to the extent that you can do so safely.

III. Step Three – Notify the Proper People
Your company needs a written notification plan to help your employees notify the
right people, depending upon the type and magnitude of the accident. The order
of notification will depend upon what has happened, but a good general guide is:

• Emergency notifications come first – Police, Fire, Rescue – you will need them on the scene as soon as possible;

• Corporate notifications are next – upper management, risk management, safety – give your people a chance to respond in a timely fashion;

• Federal and State agencies – certain types of accidents in different jurisdictions will require a different mix of notifications;

for instance, some states require notification to state environmental agencies within hours of a propane release; others require immediate notification to industrial accident agencies if the
accident occurs on a jobsite, or involves an injury to an employee; the jurisdiction of these agencies can be confusing and overlapping, leading to the need to work out a notification plan in advance;

• Neighbors, tenants and others – some accidents, such as a large scale release, should probably include notice to neighbors and other civilians in the area; if the threat is immediate, see Step Two,above. When you design your notification plan, be certain to specify who will give the
notification, how it will be done, and to whom. In dealing with government agencies, you should also work out the general form of what will be said.

IV. Step Four – Document the Scene

The key to successfully defending propane lawsuits is preservation of the scene. There is no more important piece of information to remember after an accident than this. Any disturbance of a fire scene or of the debris left behind after an explosion can substantially lessen your ability to prove that you did not cause the accident. From the moment that you learn of the happening of the accident, you MUST do everything possible to maintain the integrity of the scene until your safety people, your lawyers and your experts have a chance to examine it. Try to follow as many of these tips as possible:

• Take pictures – as many as you possibly can, as often as you can. Buy some inexpensive digital cameras and put them in your trucks. Teach your drivers and techs to use them. At an accident scene, start at the tank and work your way along the piping, taking shots of every part of the system. If there are other fuels or appliances on site,photograph them, too. Take pictures of manufacturers’ data plates on appliances and tanks. Photograph debris, fire in progress, burned material, vehicles at the scene, and even by-standers. Nothing you can do at the scene means more to your defense.

• Draw a sketch – include the structure, utilities, neighboring buildings and streets, and a layout of the gas system, if available. Measurements are not required, but can be helpful.

• Preserve equipment – tag and carefully store any equipment removed from the scene by anyone. DO NOT surrender custody of company property to anyone who is not a public safety official. Even then, insist on a full opportunity to document the equipment with photos, get a written  reement to preserve and protect the property (if possible), and get an agreement that no testing will be done without advance notification to the company. Physical evidence is critical; don’t give it away, throw it away, or allow anyone else to mess with it. If you have trouble getting these agreements, call your lawyer immediately. If no one else is interested, tag it, bag it, and tore it indoors.

• Identify witnesses – write down the names, addresses, telephone numbers and e-mail addresses of everyone at or near the site. Don’t try to interview them – that’s someone else’s job. But get enough information that we can find them later.

• Identify officials – do the same with police, fire and other officials that respond to the  scene.

• Keep some basic notes - make legible notes about everything that happens at the scene, in the order in which it occurs; do NOT try to reconstruct the accident, and do not include theories or opinions or speculation.

• Work with officials: In most jurisdictions, Fire and Police personnel have legal control of an accident scene until their investigation is completed. Introduce yourself to the officer in charge; offer factual information as requested, and technical support to prevent further harm; a good working relationship should enable you to persuade the officials to defer any significant changes in the scene until all of the interested parties can be present.

V. Step Five – Gather Other Evidence

There is a lot of information that will be needed to investigate and defend any claims that may follow an accident, and every day that passes without assembling that evidence makes it less likely that it will be available. Years can go by between the happening of the accident and the first lawsuit being filed; paper is lost or discarded; people leave the company or die; pliances disappear from the market. Capture it all today, and you’ll have it when you need it.

• “Freeze” your customer files – do not add or remove anything from your records regarding the accident location; pull the files and keep personal custody of them until you can turn them over to counsel. The best practice is to get the file to your lawyers immediately, and let them deal with requests by officials for copies of the records. Do not randomly supply pieces of your files to officials, investigators, insurance people, reporters, or others; get it to the lawyers and let them deal with it..

• Gather installation related documents – almost always, you will have other documents that, although they are not part of the customer file, will relate to some issue likely to be part of the case. For example, did another customer own the location at some prior time? If so, their customer file is a critical piece of evidence. Did you install an appliance recently? If so, pull copies of the installation and service manuals from an identical product, and make copies for your lawyer.

• Gather training and personnel records – to the extent that records regarding the hiring, training and discipline of employees involved in the incident are available, gather them, copy them for counsel, and maintain custody until the matter is resolved. Do NOT permit anyone else to have access to these records with consultation with counsel.

VI. Step Six - Avoid the Major Mistakes

You have an obligation to DO NO HARM after an accident happens. My list of major mistakes, to be avoided at all cost, includes the following:

• DO NOT offer opinions or speculation about causes or liability. These are concerns to be addressed by others after a thorough investigation.

• DO NOT give statements, oral, written or recorded, to anyone. And do not allow your employees to do so, either. Wait until you have advice from your counsel, and contact with your management.

• DO NOT talk with reporters; and make sure your employees don’t either. There is nothing to be gained and much to be lost. Let the company or counsel handle this mine field.

• DO NOT write down speculative accounts of what you think might have happened. If you are required to prepare an accident report, make it short and purely factual, with no embellishment, speculation, or second-hand information. If you take notes, limit them to facts.

• DO NOT assume that claims or lawsuits will not follow. Treat every accident as if a lawsuit is likely – because it is.

If an accident happens, it’s too late for prevention. But you can still follow the basic rules and procedures above, and maximize your ability to defend yourself by preserving critical evidence.

About the author: Frank W. Beckstein III is an officer of Nelson, Kinder,Mosseau & Saturley, P.C. in Boston, MA, and chairman of the firm’s Energy & Utility Group. He concentrates his practice in the defense of catastrophic fire and explosion losses, particularly involving the propane industry.

© 2007 Frank W. Beckstein III