Michael J. Rankin reports a recent case dealing with whether a defendant business owner’s destruction of video surveillance constituted spoliation or fraudulent concealment of evidence. Plaintiff alleged that she tripped and fell resulting in injuries while shopping at a supermarket. Plaintiff initiated her action against the supermarket one year after her accident. During the discovery period of her lawsuit, she requested that the supermarket produce any photos or videos depicting her accident. The supermarket responded that it was not currently in possession of any such items. However, during the deposition of the supermarket’s assistant store manager, it was revealed that potentially relevant surveillance video previously existed, but had been taped over. Plaintiff filed a motion to amend her complaint to add a claim for spoliation or fraudulent concealment of evidence. The court denied the motion. The supermarket did not dispute that it was responsible for taping over the videotapes or that it knew the tapes would be taped over in accordance with its 60 day video retention system. However, the court found that the supermarket did not do so in bad faith or with the intent to deprive plaintiff access to the footage. There was no evidence to indicate that the supermarket’s employees knew or anticipated that Plaintiff’s litigation would be forthcoming nor that any potential claim would require the retention and production of the surveillance footage.
It is not uncommon for businesses to have a surveillance video system for inside and outside their premises. It is also not uncommon for businesses to implement a video retention system that tapes over previous video footage after a certain period of time. As such, it is imperative that any accident resulting in injuries and/or property damage on or about the business owner’s premises be immediately reported to the business owner accompanied by a request to preserve any and all video surveillance. Depending on the circumstances of the incident, the notice can create a legal obligation on the part of the business owner to preserve the video footage, or be subject to a lawsuit for spoliation or fraudulent concealment of evidence.
Please contact Michael J. Rankin if you have any questions or need any assistance in connection to this subject.