Practice point: One week after plaintiff's slip-and-fall accident on defendants' premises, plaintiff's counsel 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 in question. This notice was received by defendants' employee in charge of the recordings. After reviewing the tapes from all of the cameras, the employee preserved an 84-second portion of tape from one camera that depicted plaintiff's accident, starting from one minute preceding her fall. She downloaded this clip onto a CD-ROM and forwarded a copy to defendant's insurance carrier.
The employee testified that defendants' standard procedure
regarding surveillance tapes was to send a copy of video footage of any
accident to its insurance carrier, and that, after a search of all
cameras, the 84-second portion of the one camera tape was found to be
the only footage depicting the accident. She further stated that the
insurance carrier never told her what to send it regarding an accident
and never asked her to send anything more than the short clip of the
accident. Additionally, she testified that the computer system in use at
that time automatically erased all footage every 21 days due to limited
storage capacity. She also stated that the system later broke and was
replaced. However, she could not remember when the replacement occurred,
and stated that the old system had been discarded.
Six weeks after the first request, counsel expanded his demand to six
hours of footage leading up to the accident, for all 32 cameras in the
After discovery, defendants moved for summary judgment,
arguing that they did not create or have actual notice of the condition
that allegedly caused plaintiff to fall. Plaintiff opposed the motion
and cross-moved to strike defendants' answer for withholding and
destroying relevant video footage, or, in the alternative, for an order
directing that the issue of notice be resolved against defendants.
The motion court found that defendants met their prima facie burden to establish that they
did not create or have actual notice of the condition upon which
plaintiff allegedly fell and that plaintiff failed to raise a triable
issue of fact as to constructive notice.
Although not required to do so
in light of its ruling on the summary judgment motion, the court
addressed plaintiff's cross motion to strike defendants' answer for
spoilation of evidence. The court found that the destruction of the
original surveillance video was not willful or contumacious or in
violation of a court order. The court accepted the employee's explanation
regarding the loss of the tape, finding no reason to attribute bad faith
to defendants. It also rejected plaintiff's contention that defendants
should have preserved six hours of footage from all 32 store cameras.
The Appellate Division found that the motion court properly exercised its discretion in denying
plaintiff's motion for spoliation sanctions. Plaintiff's initial demand
for preservation of video tapes was limited to those that "depict the
subject slip and fall accident that took place on the above referenced
date, time and location." The portion of the tape that was preserved
complied with this demand.
The Appellate Division noted that a property
owner's receipt of a notice to preserve records triggers certain
obligations, but there are limits to the extent of those obligations.While a plaintiff is entitled to inspect tapes to
determine whether the area of an accident is depicted and is not compelled to accept defendant's self-serving statement concerning the
contents of the destroyed tapes, this does not trigger a defendant's obligation 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.
Student note: On a motion for spoliation sanctions, the movant 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, which may include ordinary negligence;
and (3) the destroyed evidence was relevant to the moving party's claim
or defense. In deciding whether to impose sanctions, courts look
to the extent that the spoliation of evidence may prejudice a party, and
whether a particular sanction is necessary as a matter of elementary
fairness. The burden is on the party seeking sanctions to make the requisite showing.
Case: Duluc v AC&L Food Corp., NY Slip Op 05243 (1st Dept. 2014)
Here is the decision.
Tomorrow's issue: Legal malpractice.