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When the Video Surveillance Recording Goes Missing: Spoliation Claims in New Jersey

June 1, 2016

By Gregory D. Speier, Esq.*

Key Points:

  • Businesses, property owners, insurers and defense counsel should take appropriate measures to preserve video surveillance any time the potential for litigation exists.
  • Failing to secure and preserve a surveillance recording can result in significant consequences.

 

 

A video surveillance recording is typically the most sought after piece of evidence in a premises liability case. Surveillance recordings can support a plaintiff’s argument that a defendant had “notice” of a condition or, alternatively, can support a defendant’s argument that a condition was “open and obvious.” To the benefit of a plaintiff, surveillance can capture an employee failing to completely remove a liquid or substance from a floor or, to the benefit of a defendant, can capture an orchestrated event by a plaintiff. Surveillance can also reveal the exact time a snow removal contractor arrived at a property and the condition of a sidewalk thereafter. The potential uses of surveillance recordings are endless.

For that reason, one of the first questions a defense attorney should ask after being assigned a new slip and fall matter is whether a surveillance video of the incident exists. Plaintiffs’ attorneys often demand the production of such recordings immediately after suit is filed, if not before. However, video surveillance recordings have a tendency to go “missing.” Many times videos are lost unintentionally. For instance, the recording may have been accidently erased, the hard-drive reset itself or the recording simply cannot be accessed for a myriad of other legitimate reasons. On other occasions, the cause for the “disappearance” is more deliberate, such as where a recording has actually been altered or destroyed by a client. In such an instance, what are the consequences of a missing, destroyed or altered video surveillance recording? A possible claim for the spoliation of evidence.

Spoliation Claims in New Jersey

In the legal context, spoliation is used to describe the hiding or destroying of evidence by an adverse party, resulting in the interference with the court’s proper administration and disposition of the action. In New Jersey, a duty to preserve evidence arises when there is: (1) pending or probable litigation; (2) knowledge by the party of the existence or likelihood of litigation; (3) forseeability of harm or prejudice to another party if evidence were discarded; and (4) evidence relevant to the litigation. Hirsch v. General Motors Corp., 628 A.2d 1108, 1131 (Law. Div. 1993). At a minimum, when litigation is likely, a prospective party is obligated to preserve material evidence. Whether that duty is breached requires a fact-specific inquiry based upon a standard of what is reasonable under the circumstances.

In the litigious modern age in which we live, the chances that litigation will follow a slip-and-fall incident at your retail/grocery store or commercial/residential premises is high. If that occurs, your business has a duty to preserve a video surveillance recording that captures such an incident.

If this duty is breached, the plaintiff can seek three potential remedies: (1) the “adverse inference” charge; (2) the “discovery sanction”; and/or (3) the tort of “Fraudulent Concealment.” The applicable remedy is often dependent upon the nature of the spoliation, when the spoliation occurred and when the spoliation was discovered. Generally speaking, these remedies are intended to punish the wrongdoer, deter others from such conduct, to level the playing field and to make whole, as nearly as possible, the party whose action has been impaired by the absence of material evidence. Rosenblit v. Zimmerman, 766 A.2d 749, 754-755 (N.J. 2001).

The Adverse Inference

The adverse inference is a jury charge that may be invoked by the court in situations where a litigant becomes aware of the destruction or concealment of evidence during the underlying litigation. It permits the jury to “presume that the evidence the spoliator destroyed or otherwise concealed would have been unfavorable to him or her.” If the duty to preserve evidence is violated, this instruction can be used regardless of whether the spoliation was intentional or merely negligent.

Consider the impact such an inference would have upon the jury: video surveillance captured a slip-and-fall incident; the recording was destroyed/is missing/was altered; and the jury is instructed to assume that the recording, had it been available, would have been unfavorable to the defendant and, by inference, would have assisted the plaintiff. Put differently, the adverse inference instruction permits the jury to imagine in their own minds the condition of the defendant’s premises in a light most favorable to the plaintiff. See Jerista v. Murray, 883 A.2d 350 (N.J. 2005).

The Discovery Sanction

The duty to preserve evidence arises even without a court order. The negligent loss of evidence has been equated with a failure to comply with a party’s discovery obligations. When a party fails to comply with a discovery demand or request, the New Jersey Court Rules provide for a number of potential consequences: for designated facts to be taken as established; to refuse to permit the disobedient party to support or oppose designated claims or defenses; to prohibit the introduction of designated matters into evidence; to dismiss an action; or to enter judgment by default. The Court Rules also allow the court to order the spoliating party to pay reasonable expenses resulting from his conduct, including attorneys fees. See Aetna Life and Cas. Co. v. Imet Mason Contractors, 707 A.2d 180 (App. Div. 1998). In the worst-case scenario, if material evidence goes missing, the plaintiff may seek a dismissal with prejudice, which will be ordered only when no lesser sanction will suffice to erase the prejudice suffered by the non-delinquent party.

However, a party will not be penalized for a loss of evidence for which it was not responsible where the adversary is not unduly prejudiced by the loss. Absent exceptional circumstances, the court may not impose sanctions on a party for failing to provide electronically stored information lost as a result of the routine, good faith operation of an electronic information system. Of course, if litigation is reasonably expected, and video surveillance capturing an incident is stored electronically, a duty upon a business or property owner to preserve such evidence remains.

As indicated, the discovery sanction can be used by a plaintiff during the course of an underlying action to penalize a defendant for destroyed or altered video surveillance. The numerous sanctions noted above can obviously be detrimental to one’s ability to successfully defend a lawsuit.

Tort of Fraudulent Concealment

New Jersey courts have held that “spoliation” is not a separate cause of action. Rather, the adverse inference and the discovery sanction are remedies sought during discovery and/or trial. However, if the spoliation is intentional, a plaintiff may pursue a separate cause of action known as “fraudulent concealment.” This tort requires the plaintiff to show that: (1) the defendant had a legal obligation to disclose the evidence to the plaintiff; (2) the evidence was material to the plaintiff’s case; (3) the plaintiff could not have readily learned of the concealed information from another source; (4) the defendant intentionally withheld, altered or destroyed the evidence with the purpose to disrupt the litigation; and (5) the plaintiff was harmed by the nondisclosure by having to rely upon an evidential record void of the evidence that the defendant concealed. Tartaglia v. UBS PaineWebber, Inc., 961 A.2d 1167, 1188 (N.J. 2008).

If the spoliation is discovered while the underlying action is ongoing, a party can amend the complaint to add a count for fraudulent concealment. If the loss or alteration of material evidence is not discovered until after the underlying action has been resolved, the plaintiff may file a separate action for fraudulent concealment.

In the scenario where a fraudulent concealment count is brought by way of amended complaint, bifurcation is required because the fraudulent concealment remedy necessarily depends upon the jury’s assessment of the underlying case of action. After the jury has returned a verdict in the underlying action, it will be required to determine whether the elements of fraudulent concealment have been established and, if so, whether damages are warranted. The bifurcated claim will focus on the damages, both compensatory and punitive, incurred in having to proceed without the destroyed evidence. If a plaintiff has already prevailed on the substantive claim with the benefit of the adverse inference, the fraudulent concealment bifurcated action does not permit the jury to consider anew whether its substantive verdict would have been different had the missing evidence been considered. Rather, it only permits the plaintiff to recover additional compensatory damages limited to the further costs of proceeding without the spoliated evidence, or costs incurred in an effort to replace that evidence, together with, if appropriate, punitive damages. If, however, the act of spoliation is discovered after a verdict is reached in the case-in-chief, the cause of action for fraudulent concealment will be entirely separate and, depending upon the outcome of the original trial, may include both consideration of substantive counts as well as the spoliation-based damages.

Consider a plaintiff who is deprived of a video surveillance recording due to intentional destruction and is subsequently required to hire additional experts or to create a model based on photographs or verbal descriptions. Such a plaintiff may be entitled to those costs as an element of damages. Quite simply, a tort that allows for the imposition of punitive damages against a defendant should be avoided at all costs.

Conclusion

In today’s world, businesses and property owners increasingly have surveillance in place. It can often be a double-edged sword, potentially problematic should it reveal a defendant having “notice” of a condition or, on the other hand, beneficial should it demonstrate evidence of comparative negligence or an orchestrated event on the part of a plaintiff. Even if the surveillance recording is damaging, it may still give defense counsel something to work with in an effort to limit a defendant’s exposure. A surveillance recording is frequently the most accurate piece of evidence relating to the occurrence of an accident on one’s property. Therefore, after a slip and fall takes place, steps should be taken to actively seek out and preserve any type of surveillance recording because, before long, a preservation letter from an attorney may be received or a summary proceeding to preserve the evidence may be filed.

The failure to secure and preserve a surveillance recording can result in significant consequences, which can include monetary sanctions, adverse inferences at trial and even punitive damages. Businesses and property owners should avoid such consequences by investing in technology resources that allow for easy surveillance preservation, exportation and transfer. There are many reasonably priced technologies on the market today that are as simple to operate as the DVR on your television.

This article should serve as a reminder to all businesses and property owners, insurers and defense counsel to take appropriate measures to preserve video surveillance evidence anytime the potential for litigation exists as the plaintiffs’ bar will undoubtedly pursue all available remedies as the result of a defendant’s failure to do so.

*Greg is an associate in our Roseland, New Jersey. He can be reached at gdspeier@mdwcg.com.

 

Defense Digest, Vol. 22, No. 2, June 2016

Defense Digest is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2016 Marshall Dennehey Warner Coleman & Goggin. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.

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