Spoliation of Evidence Issues Bedevil Store Injury Litigants

This article was first published on Law.com Network 

Two recent New York Appellate Division rulings illustrate some of the evidentiary snares lawyers defending store owners against injury claims may have to confront. Duluc v. AC&L Food Corp., 2014 NY Slip Op 05243 (N.Y. App. Div., 1st Dep’t, July 10, 2014); Pennachio v. Costco Wholesale Corp., 2014 NY Slip Op 05165 (N.Y. App. Div., 2d Dep’t, July 9, 2014). They also offer practical lessons lawyers on both sides might find helpful. Perhaps, even more important, the subtleties reflected in these “simple” negligence cases can be informative in litigating more complex tort cases.

Slip and fall cases plague all kinds of marketing venues but falls in supermarkets and department stores seem to stand out. Most, if not all, significant stores have video cameras operating in strategic locations so the injurious event may well have been filmed. The video recording could help prove the plaintiff’s case or, quite possibly, disprove it. The video can be a silent but dramatic witness.

However, store-based video equipment often is meant to run continuously so images are taped over cycle after cycle. Because of limited storage capacity, computers, at some point, likely erase all footage automatically. The storage period might only be several weeks. This means that, although an injury episode, such as a fall by an elderly person due to produce or liquid on the floor may have been filmed, unless someone intervenes timely to preserve the tape, the video may be erased.

If the injury is not called to the attention of the store managers or personnel at the scene, the latter have no notice of the event and no reason to preserve the tape. Often, the injured party will only contact a lawyer after much time has elapsed. Then, the claimant’s lawyer may not act promptly in giving the store notice of the claim. The potentially best “witness” to what actually happened – the video – may no longer be available.

If, on the other hand, the injury was made known immediately to store personnel at the scene, does the mere fact that someone slipped on the proverbial banana peel now impose upon the store’s managers some duty to preserve the video recording of the event in question? If yes, how much video footage should be saved? Would it be just the clip showing the customer and her movements? Should it be the entire day’s footage? And, since most large supermarkets or department stores have multiple cameras shooting from different angles, would preservation mean storing all cameras’ footage? For how long?

These musings about preserving store video recordings as possible “evidence” run smack into practical, conflicting realities. The notion that all footage from all store cameras regarding any untoward event that might possibly give rise to a lawsuit years later should be preserved would impose an expensive, time-consuming, space-using obligation wholly out of proportion to the purpose of the business. The supermarket is not a film studio. The cameras are there for practical security reasons. That some isolated segment of footage might some day, years later, be helpful evidence in a lawsuit does not justify turning supermarkets into film libraries. So there has to be some rule of reason, some sane, operational custom and usage that balances what’s needed with what’s practical.

The rubric that best envelops the competing considerations re preserving surveillance videos would seem to be “spoliation of evidence,” the principle that someone may have an obligation to preserve evidence once that person is put on notice that a lawsuit has been filed or is anticipated. Spoliation questions also can arise in store contexts when the plaintiff claims that a food item or its packaging was the cause of his injuries. For example, if a jar cracks while the customer is handling it and suffers injury, do store personnel have to preserve the broken jar? If so, for how long? And what if the customer takes the jar home and injury occurs there. Does the erstwhile plaintiff himself have a duty to preserve the evidence? What are the consequences if either the store or the patron do not?

Spoliation of evidence questions are at the heart of the two Appellate Division rulings mentioned at the outset. In Duluc v. AC&L Food Corp., plaintiff fell at defendant’s premises. One week later her lawyer sent a notice to defendant to “preserve any and all video recordings/surveillance tapes/still photos of any nature that depict the subject slip and fall accident” on the date and time specified. This notice was received by B, defendant’s employee in charge of such recordings. After reviewing the tapes from all of the cameras, B preserved an 84-second portion of the tape from one camera. It depicted the accident starting from one minute preceding the fall. B downloaded this video clip onto a CD-ROM and forwarded a copy to defendant’s insurance carrier.

B testified that it was their standard procedure to send surveillance tape footage of any accident to their insurance carrier. After searching all the cameras, B said the 84-second portion from the one camera was found to be the only footage depicting the accident. The insurer never issued instructions on what to send nor did it ask B to send more than the 84-second clip. The computer system in use at that time automatically erased all footage every 21 days due to limited storage capacity. The old system broke and was replaced.

Six weeks after his initial request, plaintiff’s lawyer expanded his demand. Now he wanted six hours of footage leading up to the accident, for all 32 cameras in the store. Upon completion of discovery, defendant moved for summary judgment arguing that they did not create or have actual notice of the condition alleged to have caused plaintiff’s fall. Plaintiff opposed and cross-moved to strike defendant’s answer for withholding and destroying relevant video footage. Alternatively, plaintiff asked that the issue of “notice” be resolved against defendant.

The motion court granted defendant summary judgment. On the video preservation issue, the judge found that the destruction of the tape was not willful or contumacious or in violation of a court order. He also rejected plaintiff’s contention that defendant should have preserved six hours of footage from all 32 store cameras.

The Appellate Division, in a 4-1 decision, affirmed. The following highlights the majority’s reasoning. The party seeking spoliation sanctions must establish that (1) the party with control over the evidence had an obligation to preserve it at the time it was destroyed; (2) the records were destroyed with a “culpable state of mind” but this may include ordinary negligence; and (3) the destroyed evidence was relevant to the moving party’s claim or defense. Duluc, Slip Op, at 3 (citing precedents). In deciding whether to impose sanctions, courts look to the extent of prejudice caused by the spoliation of evidence. Also, they consider whether a particular sanction is necessary “as a matter of elementary fairness.” The burden of proof is on the party seeking sanctions. Ibid.

Here, the majority concluded that the motion judge properly exercised her discretion in denying spoliation sanctions. Plaintiff’s lawyer initially demanded preservation of tapes limited to those that “depict the subject slip and fall accident that took place on the above referenced date, time and location.” The appellate panel concluded: “The portion of the tape that was preserved complied with this demand.” Responding to the dissenting Justice’s contentions, the Court said that anti-spoliation responsibilities do not “translate into an obligation on a defendant to preserve hours of tapes indefinitely each time an incident occurs on its premises in anticipation of a plaintiff’s request for them. That obligation would impose an unreasonable burden on property owners and lessees.” Id. at 4.

The timing and content of plaintiff’s lawyer’s “preservation demands” were pivotal in the court’s analysis. Further, the panel majority did not spare defendant of some criticism, saying: “[t]he procedures employed by defendants with respect to preserving the tapes and coordinating with the insurance carriers were less than stellar.” Nevertheless, they did not rise to the level of sanctionable conduct. That camera tapes from another angle might have revealed a cause for plaintiff’s fall was “sheer speculation,” which was not a basis to deny an otherwise merited motion to dismiss. Ibid.

Space limitations here do not permit discussion of the dissenting opinion. However, it is worth reading to see how the arguments can stack up for an opposite result. Indeed, the dissent’s contentions seem to have stimulated substantial responses in the majority opinion, a sign the opposing points are not lightweights. This interchange shows how the spoliation battles turn on the facts and the judge’s conclusions from the record that a “culpable state of mind” was not animating the non-preservation of evidence. For both defense and plaintiffs’ lawyers, one takeaway lesson is to pay rapt attention to the timing and actual language of the “preservation demand.” The terminology used can be a “self-imposed fence” against over-arching demands for wider preservation received after the evidence was destroyed.

In the second ruling, Pennachio v. Costco Wholesale Corp., plaintiff was injured when he reached for a broken, shrink-wrapped glass jar of olives on a shelf. The store personnel kept the jar and marked it as “evidence” not to be discarded. However, defendant later discarded the jar inadvertently. After commencing the lawsuit, plaintiff’s counsel demanded production of the jar. Because of its unavailability, the lawyer filed a motion to strike defendant’s answer on the ground of spoliation of evidence.

In support of the motion, plaintiff’s expert submitted an affidavit saying that examination of the subject jar, which had contained mold at the time of the accident, would have enabled her to opine regarding the length of time the jar had been broken. She said she could determine the age of the mold and, thus, the time the jar’s contents had been exposed to oxygen. Plaintiff argued that such evidence was vital to his ability to prove that defendant had constructive notice of the jar’s allegedly dangerous condition. Defendant submitted an opposing expert’s affidavit disputing the other expert’s ability to reach an accurate conclusion as to when the jar broke since the jar was not kept, before and after the accident, in a controlled environment.

The motion court granted the motion but only to the extent of directing that an “adverse inference” charge be given against defendant at trial. Both sides appealed. The Appellate Division, Second Department, focused on the appropriate remedy in this kind of case. Striking a pleading is a “drastic sanction” to impose in the absence of “willful or contumacious conduct.” Therefore, courts will consider the prejudice resulting from the spoliation. Is the drastic relief necessary as a “matter of fundamental fairness”?

Here, the motion judge declined to strike the pleading, a conclusion within her discretion. While the expert’s ability to determine how long the jar had been broken via the amount of mold in the jar years after the incident was prevented, “the plaintiff has other available means of attempting to prove the defendant’s constructive notice of the dangerous condition.” Non-preservation of the jar did not “fatally compromise” plaintiff’s ability to prove his case. Pennachio, Slip Op at 4.

The appellate panel reasoned that an issue of fact exists as to whether spoliation of evidence truly occurred. The sanction of an adverse inference for spoliation “is not warranted when the evidence destroyed is not relevant to the ultimate issues to be determined in the case.” Here, the experts battled as to whether a conclusion could reliably be made as to how long the jar had been broken via a “mold analysis.” If the defense expert’s opinion were credited, the lost evidence “would not have been relevant to plaintiff’s case” and, therefore, an “adverse inference” instruction would not be warranted.

The Court concluded that the issue of fact reflected in the experts’ dispute (on effectiveness of mold analysis) “should be placed before the jury” along with proper instructions that, if it credits the defense expert’s opinion, then no adverse inference should be drawn against the defendant. On the other hand, if the jury credits plaintiff’s expert, then it would be permitted to draw an adverse inference against defendant. Id. at 5.

These two rulings reveal the complex nuances within New York’s law of spoliation of evidence. The fact that such subtleties can appear in simple slip-and-fall/broken-jar injury cases should be a wake-up call to litigators handling cases far more complex than store injuries. Each decision surveys some general spoliation law and operative principles. Those lessons are apt for scenarios beyond store-based claims.