Dodging the Spoliaton Bullet (NY)

In Shields v. First Avenue Builders, LLC, a New York County trial court refused to strike third-party defendant’s pleading after the party accidentally destroyed the evidence that it was ordered to preserve. In Shields, plaintiff alleged that he was injured while cleaning a concrete pump that was manufactured by defendant/third-party plaintiff Worthington’s predecessor in liability.   Third-party defendant MC & O was ordered to preserve the pump for a second inspection after plaintiff amended his bill of particulars to include additional allegations regarding the manufacture of the pump. MC &O, however, inexplicably destroyed the pump before the second inspection took place.

Several parties moved for a stricken pleading and sanctions against MC&O without explaining about how they would specifically be prejudiced by the pump’s destruction. In addition, prior to this motion’s decision, Worthington was granted summary judgment and dismissed from the case. The court, therefore, held that Worthington’s motion was rendered moot given its dismissal from the case. In addition, it held that the other party did not submit any evidence proving that the pump’s destruction was prejudicial to its case. Therefore, rather than striking the pleading, the court ordered that an adverse inference charge at trial as the appropriate sanction.

The lesson learned is that defendants must to take great care in preserving any property involved in an accident when court ordered to do so. A clear channel of communication must be established to ensure that property subject to a court order is preserved.  That said, defendants can have some faith the court will not just strike pleadings and order sanctions for any minor violation. Rather, the moving party must show that such spoliation was actually prejudicial.

Thanks to Alison Weintraub for the post.  If you have any questions, please contact Paul at

Spoliation of Evidence: A Kinder, Gentler Sanction

In today’s technological world, video surveillance is becoming more and more common. However, many security systems delete footage after a preset interval like thirty-days.  After a deletion is discovered, a plaintiff will likely move for sanctions on the grounds that there was “spoliation” of evidence. Plaintiffs typically ask for the defendant’s answer to be stricken, but will be satisfied with the lesser sanction of excluding the damning footage at trial.

As theJennings v Orange Regional Med. Ctr  suggests, courts should find that, in most cases, preclusion is too harsh a sanction. Rather, the appropriate penalty may be an adverse inference jury charge at trial, which gives defense counsel the opportunity to offer an explanation for the destruction or argue that the “missing” footage is not relevant or necessary for the jury to decide plaintiff’s case.

In Jennings, the plaintiff was assaulted at the defendant’s medical facility. Despite having received an immediate written demand for the footage, the hospital did not preserve the videotape footage. The plaintiff then sued the hospital alleging inadequate supervision and requested the production of the video footage during discovery. The defendant admitted its mistake and the plaintiff moved to strike the defendant’s answer. The Supreme Court partially granted plaintiff’s motion and precluded the defendant from introducing evidence at trial that the alleged perpetrator was properly supervised at the time of the incident.

The Second Department reduced the sanction from outright preclusion to a adverse inference jury charge. The Appellate Division held that plaintiff did not demonstrate that she was left “prejudicially bereft” of the means of prosecuting her claim. Thus, the lesser sanction of an adverse inference/missing evidence jury charge was appropriate because plaintiff was not deprived of the ability to establish her case. The Appellate Division reasoned that plaintiff could still testify about how and where the incident occurred and subpoena other individuals who may have witnessed the incident.

Where a party fails to preserve video footage after an accident, Courts may impose sanctions based on the spoliation of evidence. To avoid the harsh penalty of preclusion or worse, an attorney must establish that the evidence is available through other means (i.e. eye witnesses are available). If so, the defense may avoid the striking of its defense or preclusion of the video footage and be forced to deal with the more manageable sanction of an adverse inference/missing evidence jury charge.

Thanks to Bill Kirrane for his contribution to this post. If you have any questions, please email Paul at .

Alcohol Tolerance and Spoliation of Evidence Examined by NJ Court

Although frequently tragic, Dram Shop cases are never boring. They always involve a discussion of alcohol and the whacky ways that people find to get themselves in trouble. Dram Shop trials usually involve conflicting testimony about who drank what, when they drank it and the effect of that consumption on one or more persons.

In Davis v. Barkaszi, the jury was entertained by conflicting testimony about how much Justin Barkaszi had to drink at KC’s Korner bar before he got into a car accident while under the influence of alcohol. Some patrons recalled him consuming numerous shots of vodka while others recollected a far less raucous evening. Despite this disagreement, the medical records recorded a blood alcohol concentration (BAC) of .191%, well over the legal limit of .08% for operating a motor vehicle.

A key liability issue was whether the bar served Barkaszi when he was “visibly intoxicated.” During the trial, plaintiff’s expert testified that Barkaszi consumed 18 ounces of vodka. He also concluded that Barkaszi was a man of “average alcohol tolerance” based on statements that Barkaszi did not drink heavily on a regular basis. Thus, the plaintiff’s expert concluded that Barkaszi would have displayed evidence of “visible intoxication” while at the bar. The defense attorney planned on attacking this conclusion by eliciting testimony from witnesses including the plaintiff that Barkaszi drank much more heavily and frequently than assumed by plaintiff’s expert. According to the defense, Barkaszi had a high level of tolerance for alcohol and would not have demonstrated signs of “visible intoxication” at the bar despite his copious consumption of vodka.

In addition, KC’s Korner had a videotape system that ran on a continuous loop that taped over the prior footage after one week’s time. The bar owner was prepared to testify that he reviewed the tape after the accident, found that it corroborated his bartender’s version of the events and decided that there was no reason to preserve the tape. At trial, the court prohibited the bar owner from explaining his decision not to preserve the tape and gave the jury an “adverse inference” charge inviting them to conclude that the tape would not have supported the bar’s position at trial.

The New Jersey Appellate Division vacated the jury verdict in the plaintiff’s favor and remanded for a new trial. The court held that the bar should be permitted to develop evidence of Barkaszi’s customary alcohol consumption to demonstrate that he had a significant tolerance to alcohol, a concession that would undermine the opinion of plaintiff’s expert. Further, the Appellate Division held that the adverse inference charge on the issue of the supposed spoliation of evidence was improper because plaintiff never made the threshold showing that the bar violated a protocol or practice concerning the preservation of evidence.

If you have any questions or comments about this post, please email Paul at   You can review the actual decision by clicking on the case name in paragraph two.