The Duty To Preserve Evidence In A Personal Injury Lawsuit
In a typical personal injury case, especially one involving a slip and fall, premises liability, or some liability by a business, it is important to know this one fact: The Defendant (property owner, store, etc.) likely has more evidence in its possession that the injured person, at least to start.
In other words, if you fall inside a business, the business may have video cameras of the fall, records of employees who cleaned different areas of the store, policies and procedures concerning how and when each area of the store is cleaned, and safety measures that are supposed to be taken. The property owner may also have the incident report which could contain names and statements of vital witnesses. Finally, employees of the store may have also taken photographs following the incident depicting the dangerous condition, such as liquid on the floor of the store.
What If That Evidence Disappears?
Because the potential Defendant has all that evidence, it leads many injured victims to be concerned: What if the business “loses” all that evidence? In fact, why would a business even keep any information or data that would tend to show it is liable for your injury?
The answer is a legal issue called spoliation of evidence. Spoliation of evidence requires that all parties (the victim included) preserve anything that could be considered evidence, once it becomes known that a claim or lawsuit could be made.
To show that evidence was destroyed, and thus, that the Defendant spoliated evidence, the victim must show that the evidence was destroyed, and that the destruction ruined or impaired the victim’s ability to prove his or her lawsuit.
Penalties for Destroying Evidence
If evidence is destroyed, the penalties can be harsh. For example, the court can instruct the jury to assume that lost evidence would say something in the other side’s favor.
So, let’s assume that a store “accidentally” erased a videotape of a fall, and there is a dispute over whether or not there was water on the floor that caused the victim’s fall. The court can instruct the jury to assume that had the tape existed, that it would have shown that there was water on the floor.
In extreme circumstances, such as a situation where a party intentionally destroys evidence, the court can also strike the Defendant’s defenses—for example the court could prohibit the Defendant from arguing that you, as the victim, were responsible in full or in part for your own injuries.
These remedies are so powerful, it is often better for a Defendant to simply give you the evidence that it has, instead of destroying it, and end up having a presumption against them in court.
You Must also Preserve Evidence
Remember that you, as the victim, also have an obligation to preserve evidence. For example, many people may throw out shoes or clothing they wore after a fall—that’s all evidence that the Defendant may want to see.
Many people have their cars repaired after an accident, without taking pictures, or giving the insurance company the chance to investigate the damage.
Your injury attorney can tell you what evidence or information you need to keep to avoid spoliation of evidence after your accident.
Make sure you have the evidence that you need to prove your case in court. Call Rosen Injury Law for help from a skilled Fort Lauderdale personal injury lawyer.