By: Patricia J. Baxter and Tyler L. Williams

Do you maintain a security system? Do you have CCTV on premises? More and more businesses are installing surveillance systems. But how often do business owners think about the process for preserving footage? If you ever have someone slip and fall on your property, preservation of that footage is paramount. Developing a retention policy for video footage and then knowing when to deviate from that policy can mean winning, or losing, in Court. Because once a slip and fall victim hires an attorney, expect to receive a formal (and enforceable) request to preserve all video footage, and not just of the fall itself, but the hours leading up to and following the fall. So, when that letter arrives in the mail, look at your available CCTV footage to see if the fall is captured, and make sure that you preserve the footage in accordance with the scope of that preservation letter. For a recent Pennsylvania case, ShotRite’s failure to capture ALL of the footage requested equated to sanctions.

In Marshall v. Brown’s IA, a three-judge appeals panel in the Superior Court of Pennsylvania ordered a new trial for Plaintiff as a result of a Philadelphia Court of Common Pleas Judge who failed to give the jury an adverse inference instruction based on Defendant ShopRite’s spoliation of evidence. Plaintiff filed suit after slipping and falling on water in the aisle of a Philadelphia ShopRite, causing injuries to her hip and back. ShopRite received a letter from Plaintiff’s counsel two weeks after the incident requesting footage of the six hours before and the three hours after the incident. In response, ShopRite preserved thirty-seven minutes of footage before, and twenty minutes after, the fall. However, ShopRite permitted the remainder of the video to be automatically overwritten after thirty days, or several weeks after the letter from Plaintiff’s counsel had been received. The case proceeded to trial and the jury returned a verdict in favor of ShopRite. Plaintiff appealed, arguing that the trial court’s refusal to give a spoliation instruction to the jury constituted reversible error.

The appeals panel reversed, finding that ShopRite’s conduct amounted to spoliation of evidence. The Superior Court held that the video footage depicting the events in the several hours prior to Plaintiff’s fall was relevant to show what steps, if any, ShopRite and its employees took to make the premises reasonably safe for patrons in the hours leading up to the incident. The panel found that Plaintiff’s counsel’s letter placed ShopRite on notice to preserve the video footage prior to and after the fall as it was likely relevant to impending litigation. ShopRite consciously decided to preserve only a fraction of video requested because, as a “rule of thumb,” it retains only twenty minutes of the video prior to the fall, and twenty minutes after. Moreover, the Court highlighted the fact that ShopRite failed to explain why it arbitrarily preserved thirty-seven minutes of footage prior to the fall without explaining why it deviated from its usual practice. In reversing, the Court held that an adverse inference instruction, the least severe spoliation sanction, was warranted, and that the trial court abused its discretion in refusing the charge.

So, take note: when that preservation letter comes in, make sure you understand the scope of what it is requesting. Especially if you have a retention policy already in place, as your existing retention policy may not be enough.