Destruction Of Surveillance Video Exposes Merchant To Liability
In Robertson v. Frank’s Super Value Foods Inc., a defendant store owner selectively edited a video surveillance tape that captured a slip and fall to eliminate pre-accident footage that would have established the defendant’s knowledge of a dangerous condition (pdf). After learning of the destruction of evidence that was potentially favorable to her case, the plaintiff amended her lawsuit to add claims for negligent or intentional destruction of evidence and impairment of civil action.
The store owner sought summary judgment on plaintiff’s intentional destruction of evidence (pdf) claim, arguing that the plaintiff could not establish that the destruction was intentionally done to impede her case and that she could not establish that the store owner knew that she was going to file suit when it edited the tape. The trial court granted the motion, dismissed the plaintiff’s claims based on the destruction of evidence, and certified the judgment for appeal.
On appeal, the appellate court recognized that the plaintiff’s claims were broader than merely the intentional destruction claim and included impairment of her civil action and that, according to Louisiana tort law (pdf) the store owner may have breached a duty to preserve the evidence. The appellate court, however, noted that Louisiana courts have not clearly enunciated rules for determining under what circumstances a person will be liable for the destruction of evidence and that the Louisiana Supreme Court has not spoken on the issue. Regardless, the court held that determining the retail business owner’s intent or motivation for the selective preservation of surveillance footage was inappropriate for summary judgment procedure.
In reviewing the facts, however, the court noted that the business owner was a sophisticated defendant with insurance to cover such accidents and access to attorneys, as well as an assumed awareness of the legal elements required to support a slip-and-fall claim and the statute of limitations for bringing such claims. The appellate court also noted that the store owner’s actions and timing in viewing and editing the video tape immediately after the accident were suspicious. Of particular interest: the store owner used a surveillance system that kept video for two weeks and then automatically re-used the tape, unless specifically directed not to do so; the store owner had exclusive custody and control over the video; the store owner directed an employee to review the tape immediately after the accident; and, the employee deleted the footage from before the accident and that would have shown whether the store owner had knowledge or constructive knowledge of the wet floor, while keeping accident and post-accident footage. Thus, the appellate court held that there were genuine issues of material fact that precluded a finding that the store owner’s actions were unintentional or made in good faith. Accordingly, the appellate court reversed and remanded back to the trial court for further proceedings.
Take-Away: This case demonstrates that a retail property owner in Louisiana may have an affirmative duty to preserve evidence related to an accident that may expose the owner to premises liability. This case suggests that liability for interference with a civil action may attach if the owner knew or should have known that a claim for injuries may be made and the property owner fails to preserve all relevant evidence.
