Supermarket’s Failure to Retain Video Surveillance Footage of Periods Preceding and Following Slip and Fall Incident “Shocks the Conscience of the Court” and Warrants Adverse Inference Instruction

Bright v. United Corp., 2008 WL 2971769 (V.I. July 22, 2008)

In this case, plaintiff alleged that she slipped on drops of "a thick, pink liquid" while shopping at defendant supermarket, sustaining injuries to her left leg and ankle.  She sued for negligence, bodily injury, medical expenses, lost income and lost future earning capacity.  Defendant moved for summary judgment contending that it did not have notice of the spill which may have caused plaintiff’s injuries.  The trial court granted the motion, holding that, because plaintiff failed to provide any evidence that defendant knew or should have known about the substance on the floor, no reasonable jury could find that defendant had breached its duty to plaintiff as a matter of law.  Plaintiff appealed, and the Supreme Court of the Virgin Islands reversed and remanded, finding that there was a genuine issue of material fact as to constructive notice.

Plaintiff’s fall was captured on defendant’s closed-circuit video surveillance system, which was comprised of both a digital hard drive that records only a finite amount of data before reusing itself and a video recorder.  The digital footage was automatically recorded over every few weeks unless it is manually copied from the digital hard drive to the video recorder.  The supermarket’s manager testified that he examined the footage of plaintiff’s fall immediately after being notified of her fall, and the video failed to show anything visible on the floor at the time of the fall.  Concluding that plaintiff "probably tripped on herself," the manager testified that he elected not to review or copy any of the footage prior to or after the fall.  He also testified that the store had no set procedure for retaining video footage of slip and fall accidents and that the store simply retained the footage of the actual fall in plaintiff’s particular circumstance.

Plaintiff had contended that she was entitled to a spoliation inference because defendant had intentionally erased the video footage depicting what had transpired prior to and after her fall.  The Supreme Court agreed:

After reviewing the footage, Plaza’s manager retained only the portion of the footage which he believed to be relevant, purportedly in accordance with the store’s routine practice.  It is clear, however, that Plaza’s routine practice regarding the destruction of surveillance footage capturing slip and fall accidents is flawed.  Store managers should retain recorded footage of the area in which an accident occurred both prior to and following the accident.  Obviously, such footage is likely to provide relevant and valuable evidence regarding the cause or timing of a spill resulting in a slip and fall accident.  It is certainly not within the discretion of a store manager to determine what portion of the available recorded surveillance footage is relevant to anticipated litigation. . . . To allow store managers unbridled discretion to determine what footage to retain would encourage the destruction of relevant evidence by allowing managers to destroy unfavorable footage under the pretext of routine practice.  While this Court does not find any statutory or case law indicating precisely what portion of surveillance footage capturing a slip and fall accident should be retained, common sense dictates the retention of comprehensive surveillance footage of any accident, including a reasonable period of time preceding and following the accident.

(Citations and footnote omitted.)  The Supreme Court found that defendant’s destruction of the recorded surveillance footage prior to and after the fall indicated its “bad faith and fraudulent intent to suppress the truth.”  It continued:

Given the importance of determining how and when a foreign substance causing a slip and fall originated, it is unlikely that any reasonable business manager would fail to evaluate the portion of the video surveillance preceding the slip and fall.  Therefore, this Court finds that the failure of the Plaza’s manager to retain the recorded surveillance footage prior to and after Bright’s fall shocks the conscience of the court and creates a presumption of fraud.

The court thus concluded that defendant “both intentionally and fraudulently destroyed relevant evidence.”  It also found that plaintiff had been severely prejudiced, since the destroyed footage was perhaps the only evidence upon which she could rely to prove that defendant had notice of the spill.  Accordingly, it held that the trier of fact should be permitted, although not required, to apply an inference of spoliation in the case.  It explained:  “This Court can conceive no other sanction that would avoid substantial unfairness to Bright.  Moreover, the spoliation inference is particularly appropriate in order to deter similar conduct by Plaza and other businesses in the future.”

The court noted that there was circumstantial evidence that the liquid had been on the floor long enough for defendant to have had constructive notice of it.  Specifically, when asked if anything indicated how long the substance had been there, plaintiff had testified that there was a little dust on the drops which indicated to her that it had to be there "for a little while."

Thus, viewing the record before the trial court when ruling on the summary judgment motion, the Supreme Court found sufficient circumstantial evidence, when combined with an inference of spoliation, to permit a reasonable trier to fact to conclude that defendant had constructive notice of the alleged pink liquid.  The Supreme Court thus vacated the lower court’s order and remanded the matter for reinstatement on the trial calendar.