This post is about an article that I read entitled “Be Prepared for the Inevitable Process Safety Attack” which discusses new plaintiff allegations and attacks on business safety processes in litigation to obtain enhanced damages. The article was in http://www.corpcounsel.com which has regular worthwhile information and materials. You can also see the text version of this discussion posted below the following video.

The gist of the article is that in an increasing number of cases, such as catastrophic accidents, in addition to seeking recovery for the injuries under traditional tort or products liability causes of actions plaintiffs are also seeking to allege wrongdoing or liability for improper or inadequate safety processes.

With these types of allegations plaintiffs hope to bring into evidence not only the facts of the specific incident that occurred but also any similar past accidents, or warnings, and company safety practices and processes, risk management and safety culture. And plaintiffs are using these allegations to support claims for not just negligence, but also gross negligence and possible punitive damages.

These actually aren’t new approaches to alleged liability, but apparently their use is on the rise in situations where the opportunity presents. I view it as essentially an allegation that an accident was just waiting to happen.

Some of these issues are appropriate for involvement by executive management and some board or board committee oversight.

The upshot for my friends in the risk management, compliance, safety, internal audit, governance and ethics functions that it presents an opportunity for the design, implementation, monitoring and reporting about processes in these areas.

For example, the article noted these types of allegations being alleged in the BP oil spill accident.

The fact that an accident or negative event occurs doesn’t mean that someone was negligent or should be liable. But allegations that this wasn’t simply an accident, but that it was or should have been anticipated can be very persuasive to the jury. But risks and accidents cannot necessarily be anticipated or prevented.

This could also lead us into a discussion about the use of the terms risk appetite or risk tolerance, which are terms that might be used in risk management. I have previously expressed my dislike of these terms because although I understand the manner in which they are used, to the jury they could imply an attitude of acceptance of injury. This will be a discussion for another time.

That’s it for now.

Dave Tate, Esq.

Blog posts and videos emphasizing new developments, people’s actions, the crossover in legal, risk, governance, business, accounting and other topic areas, and what it means. Please follow this blog by clicking “Follow” to the left, and you can find my LinkedIn, Twitter and other connections by clicking on the “About This Blog, Me, And My Connections” link above and to the left. Enjoy. Dave Tate, Esq. (and inactive CPA).