In personal injury cases the existence of security footage of the incident itself is rare, often due to the length of time between an accident and the commencement of a lawsuit. In many instances, especially where a defendant may not even know an accident occurred, the footage is erased within days or hours of the accident and irretrievable at a later date. Normally, that would not result in a finding of spoliation.  However, where a party did maintain the evidence initially, and it was later destroyed, the outcome may not be so favorable.

In Eksarko v. Associated, 2017 Slip Op 07975 (2d Dept. 2017), plaintiff alleged that she slipped and fell on a grape that had fallen onto the floor of the defendant supermarket. The supermarket, having been notified by plaintiff at the time of the accident that she was injured, pulled and saved the footage of the accident caught on the store’s security video system.

Shortly after commencement of the lawsuit, the store was undergoing renovations when the computer that was storing the footage was destroyed and could not be retrieved. This was conveyed to plaintiff through counsel and through testimony of the Store Manager. When the defendant moved for summary judgment plaintiff cross-moved seeking sanctions for the defendants alleged spoliation of evidence due to the destruction of the video footage.

The Appellate Division overturned the lower Court’s decision and denied the defendants’ motion for summary judgment and granted plaintiff’s cross-motion for sanctions against the defendant. The Court found that even where evidence was destroyed negligently, versus intentionally, if a party can show that the evidence was relevant to their claim or defense the Court can impose sanctions against the party that failed to preserve the evidence.

The Appellate Division found that plaintiff established that the footage was relevant to her claims and to defeating the defendant’s motion on notice and as such sanctions against the defendant were warranted. Due to the fact that plaintiff had other evidence to establish her claim and that the spoliation was not intentional, but negligent, the Court determined that it would not strike the defendants Answer, but rather would direct an adverse inference charge at trial related to the destroyed footage.   The message is clear — if you have notice of a claim and of the existence of footage, save that footage!  And as attorneys and claim professionals, we need to remind insured clients of their duties to preserve such footage.  Thanks to Dana Purcaro for her contribution to this post.  Please email Brian Gibbons with any questions.