In premises liability cases, the proliferation of surveillance cameras in commercial settings means a corresponding focus on the duty to preserve video evidence that businesses ignore at their peril.
It is key for businesses is to have and abide by a written policy establishing standard guidelines for retention of video that may be relevant to a premises liability claim.
When there’s no reason to what’s saved, it opens the door to a plaintiff arguing that a store is trying to hide evidence.
Advances in video surveillance technology over the last 10 years has had a significant impact on business and property owners in the context of personal injury claims.
The new systems are relatively cheap. Premises owners install video surveillance cameras so that every foot of their space is being monitored. The result is a lot more evidence of video surveillance in the courtroom, and more spoliation issues arising from that.
To get understand the issue of spoliation, one needs to understand the limitations of the technology employed in a particular case. While digital recording is the norm for most clients, some still rely on outdated videotape systems.
But even digital recording systems have limitations that prevent the preservation of routinely captured video indefinitely. There is only so much memory, so after a set amount of time the system will overwrite what was there before.
Digital systems can overwrite video in as short a time as seven days. Other systems overwrite up to every two months. When a slip and fall occurs on the property, the company has a set amount of time to preserve the relevant video in anticipation of litigation.
With the arrival of an ambulance to tend to an injured customer or a report of a fall at a service desk, a business has notice of a potential claim. That should trigger a policy requirement to preserve the recordings.
While it is clear that an owner has a duty to preserve evidence relevant to a claim, it is less clear when that duty arises. Courts across the country have identified a wide range of legal standards to make that determination
In Massachusetts, the duty to preserve evidence arises whenever the threat of a lawsuit becomes sufficiently apparent such that a reasonable person in the spoliator's position at the time of the spoliation would know the importance or potential importance of the evidence to the case.
Plaintiffs can waive claims of spoliation by unreasonably delaying or failing to make a request to preserve evidence.
To ensure a store preserves video evidence, lawyers will immediately send letters of representation on behalf of her client along with a letter outlining the store’s legal obligation to retain relevant surveillance video and other pertinent records.
The duty to preserve surveillance video evidence is triggered only when the business becomes aware of an accident. The store or property owner has a duty to search their system to see if the accident was captured. If it was captured, they would need to preserve that so it won’t be overwritten.
A written policy providing for preservation of video from one hour before to one hour after an accident is a good idea.
For slip and fall cases video for the entire day of the accident from every camera that the business has should be kept.
Owners should preserve the evidence for three and a half years for claims that have been filed but not yet served within the statute of limitations.