Premises & Retail Liability

Key Points:

• The distinction between security video and surveillance video is important.
• Preservation of all possible video is critical to avoiding spoliation claims.

Discovery issues aren’t usually the most moving and compelling (see what I did there), but a court’s resolution of those issues can be informative. One such discovery issue that is in flux much of the time concerns production of video footage in premises liability cases. Two recent opinions in the Eastern District of Pennsylvania are worth examining.

In the case of Dietzel v. Costco, et al., 2022 WL 2703612 (E.D. Pa. July 12, 2022), the plaintiff claimed that he tripped and fell on an uneven sidewalk as he attempted to enter the tire center at Costco. According to the defendants, the alleged incident was not captured on their video cameras because there were no cameras covering the area in question. However, the plaintiffs noted that the claim notes produced by the defendants in discovery instructed the defendants to save video footage from the closest camera from one hour prior to the alleged incident until one hour after. Thus, the plaintiffs moved to compel production of any and all video footage from the entire property on the day of the alleged incident, regardless of whether that footage depicted the incident.

In her opinion, Magistrate Judge Sitarski noted that the crux of the dispute was whether the footage in question was “security footage,” which was the plaintiffs’ position, or “surveillance footage,” as the defendants contended. Judge Sitarski noted that Pennsylvania courts have held that a defendant does not have to produce surveillance footage until after the plaintiff has been deposed because such footage is made for the purposes of impeachment.

In contrast, the footage in that case was not a surveillance tape, rather, it was a security tape made in the normal course of business operations. Thus, Judge Sitarski ordered the defendants to produce 30 minutes of video footage before the time of the alleged incident and 30 minutes of footage after the incident, for a total of 60 minutes. Alternatively, if the defendants had no such footage, they were required to certify that in writing to the plaintiffs. The plaintiffs were not required to appear for their depositions until after either the footage or the certification was produced.

In the case of Defrehn v. TJX Companies, Inc., 2022 WL 2974717 (E.D. Pa. July 26, 2022), the plaintiff alleged that she was injured after she slipped and fell on a clear, gel-like substance inside of a TJ Maxx store on December 16, 2018. On December 31, 2018, the defendants’ insurance carrier requested that the defendants’ loss prevention district manager preserve all video footage from 20 minutes before and after the fall. The manager stated that no video of the incident existed. However, the manager later testified at his deposition that he had “reviewed” the footage but chose not to preserve it because he “didn’t think it was relevant.” In his testimony, he also confirmed that cameras would have captured when an employee removed cleaning supplies from a janitor’s closet.

The defendants moved for summary judgment on the plaintiff’s negligence claim. The plaintiff argued that the motion should be denied because of the defendants’ failure to preserve the video. District Judge Robreno agreed, stating that the manager testified he reviewed the footage and chose not to preserve it, even though it was relevant in that it would have at least shown when employees removed cleaning supplies from the janitor’s closet. Thus, application of an adverse inference by the court precluded the defendants from prevailing on summary judgment.

What’s the practical application of these decisions?

First, it is critical to ensure that any video footage, even if it doesn’t show the alleged incident, is preserved from the entire location for the entire day of the incident, if possible. Many times we are forced to try to prove a negative, and being able to show that something didn’t happen, or couldn’t have happened, is key.

Second, there should be clear guidelines in place at the facility level as to what steps should be taken in the event of a customer incident in terms of incident reporting and preservation of video footage.

As your defense attorneys, we typically come in to these situations long after the fact. Having solid protocols in place for these events protects your business from spoliation claims and adverse inferences, or worse, and makes our job easier.