Duty to Preserve Evidence in Florida Premises Liability Cases

securicam-387604-m.jpgAfter you’re hurt in an accident, you might assume that the people who caused your injury will behave ethically, keeping any evidence that you may need at trial. Unfortunately, this is not always the case. The insurance carrier for a store, hospital or other entity is not on your side. Its duty is to its insured, not to you. That’s why it is critical to consult with a personal injury attorney immediately after an accident if you believe someone else might have been at fault.

The Florida Second District Court of Appeal considered the duty to preserve evidence in Florida premises liability cases. The ruling reached by the court was very unfavorable to plaintiffs and illustrates the importance of proactively retaining an attorney as soon as you are aware of injuries.

In the case, a woman slipped and fell in a store, shattering her wrist. She had two surgeries, but experts believed more surgeries would be needed later. Within a week of the incident, the woman and the store’s insurance carrier talked several times and she gave an insurance agent a statement. She told the agent she slipped two steps beyond the front door mat, which was wet from rain. She also told the agent how much time she missed from work and notified the agent of her need for surgery.


The insurer said the insurance carrier could follow up after she completed treatment and that it was investigating the matter. The insurer ultimately did not settle the woman’s claim. She sued and later served a request to produce any surveillance recordings of the premises from the day of the accident. The store replied it had no videos.

Later the store’s principal testified that the store had sixteen surveillance cameras, all of which were operational and at least one of which would have captured the accident on tape. However, he also testified that the system only kept recordings for 60 days. There was no standard archiving procedure. He admitted he could have made a copy. He claimed that nobody asked him to preserve the video recordings and the insurance agent claimed that the plaintiff only wanted her medical bills paid off.

There was no way to figure out what the recordings had contained or know for sure that they had captured an accident. The plaintiff learned that the store’s principal had testified in a different, earlier slip and fall case he personally watched the recording. He wanted to know if the other plaintiff had been running.

The woman filed a motion claiming intentional spoliation of the surveillance and receipts of the day of her accident. She argued that the store should have preserved this evidence because it knew there was an insurance claim pending. She asserted that the evidence would have showed that customers tracked rainwater into the store, but the store hadn’t warned that the floor was wet.

Among the remedies requested by the plaintiff was a jury instruction that because there were no recordings there was a presumption the evidence worked against the store. She also asked the judge to instruct the jury the store was negligent. Her motion was denied, as was a later motion for sanctions for destroying evidence.

The plaintiff appealed. The appellate court explained there was no duty to preserve the evidence because the plaintiff had not requested that they do so. The plaintiff had argued that even though she did not make a formal request, the store had a duty not to destroy the evidence because her negligence claim was reasonably foreseeable.

The court also noted that the evidence at issue was mostly video technology. Recordings still vary in quality and in terms of a recorder’s ability to preserve them. Some recordings are erased automatically. Because of these variations, the court concluded it would be unfair to impose a duty on businessmen or homeowners to preserve such evidence when no written request was made.

The issue in this case seems to have arisen because no attorney was involved at the time the plaintiff gave a statement to the insurer. Immediately after an accident, it’s important to be proactive. Retain an experienced premises liability attorney as soon as you can to make sure that important evidence is preserved.

The experienced South Florida premises liability attorneys at Friedman, Rodman & Frank can help you with cases like the one above. Call us toll-free for a free consultation at (877) 448-8585.

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Florida Appellate Court Reviews Issue of Privacy in Auto Accident Case, South Florida Personal Injury Lawyers Blog, May 10, 2013
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