Episode #80: The Danger of Safety

Steve Wood, Ph.D. and Bill Kanasky, Jr., Ph.D. discuss the litigation risks and dangers for companies that make statements like “Safety is our top priority.” Steve and Bill talk about how and why that seemingly innocuous statement is neither true nor accurate and how the plaintiff’s bar has successfully used this type of language against companies and witnesses to great success. Bill provides a real-life example of this safety priority example, the obvious dangers due to the language, and how it raises the legal bar when phrases like “safety is our top priority” are used. The unrealistic burden created by this type of language cannot be managed in most circumstances so the specific language, words, and context used is critical. Steve and Bill share how safety should be positioned within a company’s messaging and how it is not in a client’s best interest to stack rank priorities, particularly safety.

Full Episode Transcript

[00:05] Steve Welcome to another edition of the Litigation Psychology Podcast, brought to you by Courtroom Sciences Inc. And today you have double the hosts with me. I got Bill Kanasky. Dr. Bill Kanasky, how are you?

[00:17] Bill Living the dream in Florida. My air conditioner broke today, so it’s like 83 degrees in this room. No, not good. Not a good start.

[00:26] Steve No, not—not a good start at all. So, well, this is gonna—this is gonna raise your temperature a little bit because I brought you on because Sean Murphy and I had a discussion a little while back about this topic, and I know you’re very heated about this topic. We’re talking safety. Safety is a priority. I just wanted to start off by kind of getting your thoughts around what we constantly see all the time about on websites and out in public and everywhere, basically: “Safety is our top priority. Safety is our top priority.” It’s one of the—so what are your thoughts on safety as a top priority? And I know you have some on that as far as whether or not that’s a smart approach.

[01:02] Bill Well, it’s a—it’s a horrible approach because it’s not true. That’s the problem. It’s a real feel-good saying that the marketing departments have been thrown all over the place, but it’s—it’s not true. Number one. Number two, priorities change depending upon circumstances, and so if you say it’s the top priority, you’re kind of setting yourself up for disaster during testimony because somebody’s going to say, “Well, when is it not the top priority?” Right? So by definition, saying it’s a priority is really a bad idea. It’s not, and it’s really not true. Think of any industry. I mean, the safest truck, right, is the one that’s parked. The safest doctor is the one that doesn’t have the scalpel in his or her hand. The safest medication is the one that’s never given. So again, I think it’s a—it’s a marketing tool. They’re used by several industries; they’re not talking to the risk management or legal department, and the plaintiffs’ bar has been very, very wise to pick up on this and use it against defendants.

[02:13] Steve Yeah, I think you and I have had a conversation before. I mean, and this isn’t just something that you and I are just talking about and having it being used. I mean, you’ve had situations, I know there’s horror stories where you’ve had people call you in and then show you handbooks that say “Safety is a top priority” and then say, “Bill, help us. What can we do?” Right?

[02:31] Bill Yeah, yeah. Um, unfortunately that happens on a weekly basis. Let me read you such language from an actual uh, operations manual. This is for a municipality uh, who I will not tell you who they are, but I’m going to read right from it: “Safety is the first priority of the highway operations division.” Now, “first priority” is in bold and it’s underlined. Okay, this gets better, Steve, just hang in there. “This includes the safety of the employees of the division performing routine or emergency roadway maintenance, but also the public using the county’s roadway facilities including motorists, pedestrians, bicyclists and others. It is the policy of [Blank] County to conduct its business in the safest possible manner consistent with the applicable law, policy or rule.” “Safest possible manner” is bold and underlined. So this is from a recent case in which several people were deposed on this language. Now you’re stuck with the language, and so the only way out of this is to say, “Yes, that’s—that’s what the manual says.” You can’t—you can’t disagree with that. But what does it mean? And that’s where it comes to circumstances. You know, being reasonable, doing what’s appropriate. So our witnesses actually did really well with that. I mean, we had to put them through days and days of exhaustive uh, training. But the funny part about this story is, you know, in the middle of day one, I pretty much stood up in the room, and I’m surrounded by all these employees, and I pretty much said, “Whoever wrote this should be shot in the—in the—in the face like three times.” Like, who in the world—like, which one of you guys at this table authored this? And the one raised his hand. I’m like, “It’s you?” He’s like, “No, we um, we hired an outside um, safety consulting firm and they came up with this language because that’s—that’s what they do.” So they didn’t even—they didn’t even come up with this. They hired an outside vendor to come in, author all of these safety policies and procedures, and this firm obviously was not thinking about litigation um, when they—when they came up with that language, and now—and now they’re stuck with it.

[05:11] Steve Yeah, and like you said, I mean, it doesn’t really take a very savvy plaintiff attorney to just jam that down your throat, right? I mean, you could take a first-year associate and—and walk that up and present it in a deposition, and then you’re screwed.

[05:24] Bill Yeah, you know, I think—

[05:26] Steve Go ahead.

[05:27] Bill Yeah, I mean, it’s—it’s—it’s easy. It’s shooting fish in a barrel. Uh, and I think it’s really a hundred percent um, uh, beatable. It’s—I mean, you can change all this, but you really have to take a look internally. Um, our good friend um, Carlos Rincon out of—uh, defense attorney, um, trucking attorney out of El Paso, Texas, he said he is now being hired by trucking companies to come in to just review their internal documents to say, “Hey, if you were a plaintiff attorney, where would you attack this and what do we need to change?” So I think we need a little bit more uh, of that, you know, prior to litigation, because once litigation starts, it’s—it’s pretty much over.

[06:13] Steve Yeah, that’s—that’s a good point. And I think one of the other things that’s interesting too, and I’ve talked about this before, I’ve written about this before, is that, you know, the idea that just because you know—if you say that safety is one of your top priorities, everyone always has a—has a panic attack and just flips out because the—the thought is that if safety is just one of your top priorities, that somehow you’re saying that safety is not a priority at all. And I think you and I would agree with that couldn’t even be farther from the truth. And I think one of the difficult parts that we have when we train witnesses is to get them to understand this concept of “safety is a priority” does not necessarily mean that safety is not—you know, or safety being a top priority doesn’t necessarily mean it’s not a priority at all, right? There’s—it’s not just all or none.

[06:56] Bill Yeah, I don’t like the word “priority.” Um, so what we’re training witnesses to do, and when we consult with companies to choose their language: safety can be a goal, okay? Safety can be an important value of the company because it’s kind of intertwined into—in—into many things. And that’s the truth. I mean, that’s—that’s just—that’s just a matter of the fact. And um, it doesn’t sound quite as sexy to say, “Hey, safety’s our—” I mean, imagine if you walked into a hospital system, right, and above the lobby in big letters that says, you know, “Safety is our goal” or—or “Providing reasonable care is our goal.” I mean, who the hell is going to go to the hospital? That looks terrible. But that’s really what’s going on here. It really comes down to what the legal standard is: doing what’s reasonable and appropriate given the circumstances. Now, you can’t put that on a banner, on a billboard, in a commercial. You can’t do that. Um, but I have seen um, a lot of um, trucks um, on the highway that are adopting the, you know, “Safety is my goal” language. And I think that’s really important because it also implies there are other things going—going on. A truck driver can’t control other drivers’ behavior, right? A physician or a nurse can’t necessarily control their patients’ conduct um, regarding, you know, adhering to a medical—medical uh, advice. So you know, is it—is safety important? Absolutely. Is it a goal? Absolutely. Is it one of the company’s core values? Sure. Is it the top priority? No, it’s not and it never has been. It’s not in any industry. I’m sitting on a Southwest Airlines flight, and the flight attendant—I sit in the exit row, always sit in the exit row, gotta—I’m a big guy—and they were saying something like during the instruction, “You know, your safety’s our top priority.” And like halfway during the flight, I got up to use the restroom and I walked back there. I go, “You got to stop saying that,” to the flight attendant. And she’s like, “Well, but it’s true. Your safety’s our top priority.” I said, “If it’s your top priority, why is a frail 81-year-old woman, who I had to lift her suitcase to put it in the—why is she sitting in the exit row? That door weighs 37.5 pounds. I sit there every week.” And she said, “Well, we can’t—you know, we don’t want to offend people or get somebody mad at us.” I go, “Well then safety’s not—my safety is obviously not your top priority because if it was, you would actually enforce these um, you know, the things you have on the—on the pamphlet and right in the front of the seat. Here are the qualifications to sit in this exit row.” And rarely does someone meet them, right? But they don’t say anything, and the reason why is they don’t want a different type of lawsuit. They don’t want to discriminate. But the fact of the matter is airlines aren’t putting safety as your top priority and neither is anybody else. And that’s causing a big problem in litigation.

[10:12] Steve I think that’s a good point. You and I have talked to it—to not harp on the—the airways too much, but that’s another thing, right? If safety was a top priority, you still in this—you know, still with a pandemic and still at that, everybody wouldn’t be packed shoulder to shoulder, right? You had some companies that were putting spaces in between, but now we’re back smushed together. Some people can’t go to school and some people can’t do things, but yeah, we can still be smashed together on an airplane. But you know, safety is the top priority.

[10:39] Bill It’s absolutely mind-boggling that—okay, so you walk—it’s just—just so people know because I’m back to traveling full-time um, and I have been for several months now. So you walk on this airplane. Well, the first thing that happens is you’re at the gate and they start yelling at you. The mask Nazis start yelling at you like, “Don’t take this damn mask off! And if you take it off, we’re kicking you off the flight, we’re going to take you back to the gate, we’re going to land the plane prematurely,” and they just scream at you, right? 15 minutes later, you can remove your mask to eat your stale peanuts and stale pretzels and sip your—your water. And I’m thinking, well, if that’s not hypocrisy 101, I’m not sure what it is. So again, it’s just—it’s a very feel-good term that a lot of industries use. And speaking of that, I did a little Google search, see, let’s go to the—let’s go to the—okay, alls I put in the box, “Safety is our top priority.” Let’s see what comes up. First—first result: daycare center in New York. Second result: benadryl.com. That’s a nice one. Third one: healthcare center. Fourth one, let’s see, uh, another healthcare center. Let’s see, fifth one, an energy company. Let’s see, it’s all over, Steve. Uh, sixth, we have uh, looks like uh, that’s a travel company, I won’t say their name. Um, seventh, another energy company. Look at that. Uh, eighth, another clinic. Let’s see. Ninth, another clinic. Let’s just—let’s just keep going with this because this is pretty interesting. Uh, 10th—I’m just—I’m running out of numbers here—an industrial company. Then we have uh, another healthcare system. Uh, another healthcare system. Another healthcare system. And here’s an article—so it comes up 17th—”Debating safety as a value versus safety as a priority.” So I got to 17, right? And uh, now you have a bunch of YouTube stuff from again, more health organizations, and this is really all over the—all over the map. And so the other way this stuff gets you in trouble and will be used in litigation is go to some of these companies’ web pages and look under their mission statement. And it’s pretty easy to figure out who’s figured this out and has done it the right way and is not setting themselves up for disaster, versus the ones saying, “Safety, safety, safety,” and they’re—they’re raising the legal bar on themselves. And so what good plaintiff attorneys do is they print screen, right? They—they print out this language and then they bring it to the deposition. And so when the witness gets asked, “Well, hey, you know, is safety the number one most important thing in the company?” When the employee gives the correct answer, which is, “Well, safety is one of the many important things we consider at the company,” the plaintiff attorney sticks that in their face and says, “Well, not so fast, my friend. This is what your website says.” And at that point, it’s a really bad situation to be in. So I think corporations, particularly the legal departments—departments in corporations—I think you need to communicate more effectively with the marketing folks. I think the marketing folks are getting corporations in big-time trouble.

[14:10] Steve I thought it was a good point you brought up, and you took—took to number 17 till you got there about the debate about safety as a priority or safety as a value. And I wanted to talk to you about that because I have heard from some attorneys, too, that have started to, you know, bring that up and start talking about that. And some of these websites—you know, I’m looking at it now, one where it says, “Safety is not a priority, it’s a value. Priorities change, values do not.” And the implication on that is—is that it even raises safety to a higher level in that not only is now—is it just a priority, it permeates everything that your company does. So some—some attorneys are concerned that this is raising safety to even a higher level when you say safety’s our value. You know, what are your thoughts on that? I know you and I have talked about that before, about differentiating whether or not using that word, that term “value,” is really raising it above “priority.”

[15:00] Bill I don’t—I don’t think it does at all. Um, a value is something that uh, goes across many topics in many areas. I do think it’s true that um, companies value safety in—in a number of ways, but they also value other things. I mean, I don’t think um, you’re gonna find a physician in—in this country that’s—that walks into a room to evaluate a patient saying, “Okay, you know, I’m here to make the safest decision possible because that’s my priority.” It’s not. These are judgment—these—their training, they use their experience to determine what’s the most appropriate, right thing to do in this situation, not what’s safest. I mean, for crying out loud, I mean, our personal assistant uh, just—that her daughter just sat through 17 hours of labor and they finally called a C-section. Well, let’s get a couple things straight. Number one, 17 hours of labor is not safe, but they did it anyway. Okay, number two, C-sections are not safe, okay? But these things were clinical judgments made by the providers, and in the end, everything worked out. I mean, if the safest—I mean, right? I mean, if—if every determination, every decision was strictly made on safety, I mean, you would have to choose the most conservative action in every single circumstance. And that’s just really not true in—in—in life or in any industry. It’s almost—I mean, it’s really an impossible burden if—if you put safety as the top priority because it really does not allow people to do their jobs and—and it’s just really, really unrealistic. So I think that terminology um, I’d like to see it go for—forever.

[16:52] Steve Yeah, no, I totally agree. So I think the take-home message then really, right, is the safety is—is not so nuanced that you’re—it’s not so slim to the point where it—it has to be encompassed in—in one word or one idea. That really, it’s a lot more nuanced than that. There’s a lot of aspects to it. You know, really the—the goal of companies and, B, of witnesses when they’re testifying is to explain kind of, as I would like to say, the more of the shades of gray of safety versus black-or-white notion that a lot of companies or a lot of plaintiff attorneys are trying to make companies agree to the facts. Correct?

[17:28] Bill Yeah, and here—and here’s the trick that they’re using, and they use it almost every time, is they try to manipulate the witness into identifying, “Okay, well what are the company’s top priorities? I would like a rank-ordered list. And safety is number one on that list, right?” And they go, “Yeah.” “What’s number two?” And they start rattling off all—there is no list! Unless it’s in your manual or it’s on your website, there’s a list. But there is no list. All of these things should be of equal value. And a lot of witnesses are scared and attorneys are scared to admit this stuff, but is being effective, right, providing an effective service—is that important? Yes. Is safety important? Absolutely. Is providing quality care or quality product—yeah, that’s important too. Uh, being uh, timely in your delivery of a certain service—is that important? Absolutely. There’s all these customer service—and here’s the big one everybody’s afraid of—is it important to make a profit? Hell yes it is!

[18:32] Steve Don’t say that—no.

[18:33] Bill But you can’t run away from that, right? And so what you say, what the witness needs to say is, “All of those things are equally important to us. There is no list.” And that’s typically when plaintiff’s counsel just loses their [unclear] and starts to whine and moan and say, “You gotta—are you honestly gonna tell the jury that?” And the answer is, “Yes, I am. Because those are all important um, in this industry or to this company.” That’s the way that the effective testimony would come out. The ineffective way would be to come up with some priority list that’s ranked, which is just—it’s just untrue.

[19:11] Steve Yeah, like so the in—intellectually honest is to give the first response and not—not get the second one, right, of trying to rank priorities or even go down that road of trying to make it sound like you even try to rank priorities. I think those are all good points, Bill. Thanks for your time. If anybody wants to get a hold of you: bkanasky@courtroomsciences.com. You can reach me: swood@courtroomsciences.com. Courtroomsciences.com has all of our podcasts and blogs and a lot of other information up there, and you can find a lot of good stuff. Bill, I appreciate it. I’m sure we’ll see each other again on another podcast when it comes time to rant about another topic.

[19:49] Bill Absolutely. We got focus groups and mock trials coming up, so uh, we’ll be very busy on this safety topic. To our—our viewers, we’re getting some great feedback, some more viewer and listener mail. So we got—we got some really good stuff coming up.

[20:03] Steve We got the 100th episode coming up, right? We got a big surprise coming up for that. Keeping it all under wraps.

[20:08] Bill Absolutely.

[20:09] Steve All right, thanks Bill. All right, this has been another edition of the Litigation Psychology Podcast brought to you by Courtroom Sciences Inc.