If you want to avoid sanctions and losing your case, the answer is obvious.

To Preserve or Not to Preserve? THAT Is the Question

This dispute stems from Plaintiff Linda Riley’s slip and fall at a Marriott hotel in Hawaii (her husband, James, is another named plaintiff).  As a result of this fall, in simple terms, Riley broke her right leg and sustained permanent nerve damage including sensory motor loss and weakness in her right foot.  Riley contends Marriott was negligent for failing to remove accumulated water (it had been raining that day), provide a non-slip surface, or provide warning signs.

The entire accident was recorded on Marriott’s security cameras, and according to the loss prevention manager, the footage is maintained for 30 days.  However, during discovery, instead of being provided with several hours of footage, Riley was only provided with about 7 minutes; the rest was destroyed.  The footage released began about one minute before Riley’s accident, and ended before Riley was even lifted off of the ground!

Plaintiff rightfully believed she was prejudiced because:  (1) she is unable to determine how much water was removed from the location and how long it took hotel staff to remove it, and (2) that the loss prevention manager’s testimony regarding the footage cannot be meaningfully challenged because the footage was gone.  This recording was apparently turned over to the Marriott’s liability insurance carrier, but neither Marriott’s investigation into its destruction (if one occurred) nor the results of any such investigation were ever disclosed.  Even maintenance logs—that might have also denoted any water that was removed from the floor or the placement of any signs—were also allegedly destroyed.

From this, the court “easily” found Marriott had a duty to preserve both the sweep logs and the video footage from the day of the accident.  Further, the court recognized Marriott’s failure to offer any justification for its failure to preserve the evidence.  For these actions, the court found “at a minimum, gross negligence.”  The question then turned to imposing sanctions.

Fortunately for Marriott, their answer was not stricken.  Nonetheless, their failure to preserve evidence still resulted in an adverse inference instruction regarding the video footage, or lack thereof.  This means the absence of a recording can, at trial, corroborate Plaintiffs’ statements that there were no warning signs at the time of the accident and that water had also accumulated on the floor.  Of note here, the jury would not be required to make such an inference.  However, Marriott might not be eager to take that chance.         

Samuel is in the Seton Hall University School of Law Class of 2015 pursuing the Intellectual Property concentration. He received his master’s from the Rutgers Graduate School of Biomedical Sciences and became a registered patent agent prior to entering law school. 

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