In late January, 2012, a Gwinnett County State Court jury awarded $2.3M to a man who was hurt when he slipped in a Kroger grocery store. Kroger was unable to dispute liability for the incident because the Judge struck its Answer after concluding that Kroger had destroyed a video of the fall. Judge Iannazzone ruled prior to trial that Kroger had “spoliated evidence” and “acted in bad faith in failing to preserve the evidence and manipulating evidence to excuse its actions.” Around the same time, Judge Courtney Johnson in DeKalb County Superior Court struck the defendant’s Answer in a trucking accident case. The defendant’s truck contained a “black box,” which was destroyed when the truck was repaired 10 days after the accident. Judge Johnson found that the trucking company was anticipating litigation, should have preserved the truck’s condition, and that the defendant had falsified a letter to plaintiff’s counsel giving plaintiff notice of the truck repair. The moral for defendants: be careful what you throw away.
Spoliation also has been addressed several times recently by the Georgia Court of Appeals. Not all spoliation decisions have been adverse. In Watts & Colwell Builders, Inc. v. Martin, decided November 29, 2011, the Court of Appeals agreed with the trial court that a spoliation presumption did not apply when a landlord had lost a hinge to a bathroom stall. The landlord was later sued for negligence when the bathroom stall door fell off its hinges and knocked plaintiff Martin to the ground. According to the Court, Georgia law allows for a finding of spoliation if the loss of the evidence occurs at a time when there is contemplated or pending litigation. Contemplation of potential liability is not notice of potential litigation. In this case, the Court rules that there was only mere contemplation of potential liability at the time the hinge was lost. The completion of the accident report, the failed attempt to retain the hinge based upon the happening of an accident alone, and the inability to locate the hinge immediately after the lawsuit was filed did not demonstrate contemplated or pending litigation at the of loss.
Similarly, in another case involving Kroger, Paggett v. The Kroger Company, decided in September of 2011, the Court of Appeals agreed with the trial court that plaintiff Paggett was not entitled to a spoliation presumption based on Kroger’s inability to produce a surveillance video recording of the gas pump on the day Paggett fell. According to the Court, in order to meet the standard for proving spoliation, an injured party must show that the alleged tort-feasor was put on notice that the party was contemplating litigation. The simple fact that someone is injured in an accident, without more, is not notice that the injured party is contemplating litigation sufficient to automatically trigger the rules of spoliation. In this case, Kroger did not have notice that Paggett was contemplating litigation when the video recording was destroyed. Mere notice of the fall and the fact that the store manager completed a standardized “slip/fall incident report,” which stated in form pre-printed language that the report was being was prepared “in anticipation of litigation” did not mean that Kroger was aware that Paggett was going to sue when the videotape was destroyed.
Finally, in July of 2011 in Craig v. Bailey Bros. Reality, Inc., the Court of Appeals agreed with the trial court that spoliation sanctions were not appropriate because the lawsuit was filed seven months after the alleged spoliation and there was no notice that the plaintiff, the parents of a 10 year-old child who was injured while playing in an empty parking lot, had given notice to the property owner of potential litigation arising out of the fact that the child had fallen on an old cross tie. The Court wrote that “the simple fact that someone is injured in an accident, without more, is not notice that the injured party is contemplating litigation sufficient to automatically trigger the rules of spoliation.” The fact that the property owner cleaned up the property after the incident did not create a negative presumption and was merely an attempt by the owner to make the property safer.
In all these cases, the Court of Appeals stressed that trial courts should make the ultimate call as to spoliation sanctions and trial courts will only be reversed when they abuse their discretion. Therefore, the trial court’s rulings on spoliation issues are extremely important and unlikely to be reversed on appeal.
Certainly the safest course of action for any business, when there is an automobile accident or an injury on the premises, is to preserve all potential evidence. Failure to do so may or may not be deemed, at a later date, as spoliation of evidence.
Please call me if you would like copies of any these opinions or the Fulton County Daily Report articles referencing the judges’ actions in the two cases mentioned in the first paragraph.