Allowing video surveillance evidence to be destroyed in the ordinary course of business is a frequent occurrence in slip and fall cases in Georgia. Plaintiffs's attorneys often suspect that these tapes are allowed to overwrite when the tapes are helpful to the plaintiff but I imagine it is more often sloppiness on the store's part.
Typically we will file a motion for sanctions based on the spoliation and the Court will make a decision as to whether 1)the jury can be charged that the Defendant spoiled the evidence and/or 2) whether there should be other substantial sanctions including having their answer struck.
Then, earlier this year, a Georgia appellate court issued a written opinion
in a Georgia slip-and-fall case discussing a plaintiff’s claim that a grocery store knowingly destroyed video evidence of the incident that resulted in the plaintiff’s injuries. The court ultimately determined that the plaintiff could not argue that the defendant destroyed the video in her closing argument because she failed to obtain a ruling on the spoliation issue before resting her case. It is a correct statement of the law that the Court decides whether a spoliation charge is appropriate but to curtail Plaintiff's counsel from arguing all of the reasonable inferences from the evidence or lack thereof, is crossing the line.
The case is important for Georgia injury victims because a spoliation instruction can be exceptionally strong evidence in a jury trial. This case clarifies how a plaintiff must go about obtaining a spoliation instruction.According to the court’s opinion, the plaintiff was a 79-year-old woman who was in the produce section of the defendant grocery store. Evidently, while the plaintiff had her back turned, a stack of cardboard boxes tipped over onto the plaintiff. The force from the falling boxes pushed the plaintiff into a nearby display. The plaintiff suffered serious injuries as a result of the incident and filed a Georgia personal injury case against the store.
Several issues were disputed at trial, one of which was the extent of the plaintiff’s injuries related to the accident. Essentially, the grocery store claimed that the plaintiff’s injuries were caused by something other than the cardboard boxes. The store’s manager explained that he arrived just a few minutes after the accident, and he did not notice any produce lying on the ground. Based on this, he assumed that the boxes were empty. The manager also acknowledged that the store did maintain video surveillance footage of the area, however, that the system is “on loop,” meaning that unless the video is flagged for preservation, it will eventually be recorded over. The manager acknowledged that the video was flagged for preservation, but that it was not preserved.In her closing argument, the plaintiff raised the issue of the missing video. The plaintiff argued that the grocery store “had destroyed evidence that was available,” and that the video would have “been able to show whether [the defendant] was at fault or not. The court stopped the plaintiff’s counsel from arguing that the defendant destroyed the evidence, and held the plaintiff’s counsel in contempt after she tried to raise the issue once more. The court then explained to the jury that there was no basis for the plaintiff’s argument that the defendant destroyed the video. The jury came back with a defense verdict.
The plaintiff appealed the court’s decision to limit her closing argument. However, on appeal, the jury’s verdict was affirmed. The court explained that whether a party destroyed evidence is a legal determination that should be made by a judge outside the presence of the jury. Only after a ruling is made can a party argue spoliation to the jury. Here, the court noted that the plaintiff failed to raise the spoliation issue before closing argument. Without a ruling on the spoliation issue, the court explained, the plaintiff was properly precluded from raising the issue in closing argument.
If you or loved one has been hurt in a Georgia trip and fall
accident on another’s property, you may be entitled to monetary compensation.