Surveillance material is a tool that defense attorneys often rely upon in personal injury actions to discredit plaintiff’s claims of injury. In Gucciardi v. New Chopsticks House, Inc., 2015 NY Slip Op 08146 (2d Dept. 2015), a plaintiff attempted unsuccessfully to use surveillance material to show that a defendant caused the dangerous condition which led to her injuries.

Plaintiff alleged that she was injured when she slipped and fell on an icy condition in the defendant’s parking lot on December 23, 2010. Thereafter, plaintiff hired an investigator to conduct surveillance of the defendant’s premises. The investigator recorded defendant’s employees dumping water, which later froze, into the parking lot. The first instance recorded was two months after plaintiff’s incident. There were seven instances where the defendant dumped water into the parking lot over six weeks of surveillance.

Plaintiff attempted to introduce this evidence at the trial of the action to establish that the defendant caused the dangerous condition by showing that dumping water into the parking lot was a habit or routine practice. The lower court found that plaintiff’s surveillance or any testimony related to it was inadmissible. A jury verdict was found in favor of the defendant.

On appeal, plaintiff argued that the surveillance material should have been permitted as evidence to show that the defendant caused the condition. The Second Department held that the evidence was inadmissible because seven occasions over six weeks that did not begin until two months after the incident, was insufficient to show habit or regular usage that would be relevant to what occurred on the date of plaintiff’s alleged incident.

This decision supports the underlying principles of negligence law and refuses to impose liability onto a defendant based on post-accident activities.  Thanks to Dana Purcaro for her contribution.  Please email Brian Gibbons with any questions.