The Mythical "Safe Company" Standard

Craig Livingston is a shareholder in Livingston Law Firm in Walnut Creek, Calif., where he specializes in representing equipment manufacturers and rental companies in defense of personal injury claims. He is a frequent lecturer and author in this area and is an active member of the Defense Research Institute, the International Association of Defense Counsel, and the Product Liability Advisory Council. You can contact Craig at clivingston@livingstonlawyers.com .

May 19, 2004 - Years ago, a common refrain among trial lawyers was, "I'd rather have good facts than good law." This old adage is grounded in the reality that jurors decide cases based on the facts and generally go about doing so by applying those facts to the law they believe-or want to believe-exists. Jury research has shown time and again that facts trump the law because jurors can see, hear and touch the facts as they unfold during the trial. Jurors then fit those facts into their own life experiences, perceptions and biases, and, ultimately, use those facts to convince other jurors to adopt their position during the discussions and often heated arguments that take place in the deliberation room.

The perception of safety

In the equipment rental context, extensive jury research has proven that the most important facts a defendant can marshal at trial are those that will lead the jury to conclude it is a company concerned with safety. When a juror perceives an equipment renter as a "safe company," he or she will be much less likely to find the renter liable even if the particular rental transaction giving rise to the accident was less than exemplary. Conversely, when the evidence presented convinces a juror that the rental company has not made safety a priority, then a finding of liability becomes much more likely, regardless of the particular liability theory being advanced.

In other words, when a juror has concluded that the defendant renter does not hold safety paramount, it matters little whether the alleged negligence relates to maintenance issues, training issues, or warnings/instruction issues, as these labels are frequently tossed aside in favor of the facts.

Armed with this knowledge, a primary goal for rental companies and its defense counsel in such cases is to develop and present persuasive facts that will support a central trial theme-namely, that the defendant rental company is a "safe company."

Larger, more sophisticated rental companies will generally have plenty of facts from which defense counsel can support the "safe company" theme. For instance, there will likely be a gaggle of employees, such as risk managers, safety training personnel, maintenance managers and the like, whose functions are involved with, if not devoted exclusively to, making sure rental equipment is kept in safe operating condition and that renters are provided with sufficient information and training to safely operate the equipment being rented. Moreover, such companies generally have document retention programs which provide defense counsel with easy access to helpful documents like maintenance logs, pre-rental check lists, comprehensive rental agreements and check-out lists. With a few hand-picked in-house witnesses to weave these facts together, trial counsel can gather dozens of facts to demonstrate to the jury, in a variety of ways, that the notion of safety permeates the company, that the company rented a well-maintained piece of equipment, and that the company was concerned about safety even upon learning of the subject accident.

Lessons for small rental companies

But what about smaller, less sophisticated rental companies? How does defense counsel support the "safe company" theme when there may not have been an individual whose job it was to oversee the safety arena within the company? In truth, the challenges may be greater for defense counsel representing such companies, but the task remains the same. Defense counsel must work closely with the rental company to present as many facts as possible which will lead the jury to conclude the company is truly concerned about safety.

Even a small company can give its lawyers plenty of ammunition to work with in defense of a lawsuit, and it doesn't cost a bundle to do so. First, rental company managers must make safety a top priority and this message has to get communicated throughout the company in a variety of ways. From the mechanics to the sales force, everyone must understand that the notion of safety permeates all aspects of the business. If safety becomes a "corporate culture," it will come through in post-accident interviews, depositions and on the witness stand at trial.

Second, rental companies need to document the commitment to a safety policy in company records. Office posters, counter plaques, employee manuals, bonus systems, payroll check handouts, and the like provide frequent yet inexpensive reminders to employees of the need for keeping safety as a daily goal. There are many other simple and inexpensive ways a company can demonstrate a commitment to safety, and a nicely choreographed explanation of this effort on the witness stand can be a pivotal point in any trial.

Third, create documents that confirm the commitment to safety in the rental transaction itself. Comprehensive maintenance records, detailed pre-inspection check-lists, comprehensive rental agreements which acknowledge the receipt of safety training and related literature are all important documents that will be of tremendous value in subsequent litigation. Make sure they are used day in and day out, even when press of business makes it tough. To be sure, these are the documents that will give defense counsel the greatest advantage in the litigation because jurors will be able to see them, read them, and thereby come to the conclusion that the rental company took a number of concrete steps to prevent accidents.