Don’t Trash That Evidence!

By: Stephen S. Davie

If you are a home or business owner and someone is injured on your property, your gut reaction is probably to fix or remove the dangerous condition that caused the accident as soon as possible. An uneven brick paver or pothole that causes someone to trip and fall; a bottle of cleaning solution with a defective cap that spills on someone; a product display with a sharp edge that lacerates a customer. These are all conditions which you, the conscientious property owner, will try to remedy as quickly as possible. In doing so, however, you may unwittingly compromise your defense position if future litigation ensues.

A rule in law known as ”spoliation of evidence” requires you to preserve evidence which is likely needed to prove a claim in the future. The failure to preserve evidence can result in a negative inference or even the complete waiver of a defense against the party destroying the evidence. In the past this rule was limited to cases where a party violated an order specifically requiring evidence to be preserved, but in recent years the courts have expanded the rule to punish a party for even negligent destruction of evidence.

So what do you do to protect yourself? There is no universal answer to this question; each situation must be handled on a case by case basis. However, a couple basic guidelines may help your decision.

First, if the instrumentality causing the accident is something that can be preserved in the same condition, you should probably do so. In the examples cited above, the bottle with the defective cap can simply be stored in a sealed container with documentation identifying who handled the item. You can then consult with legal counsel as to whether the item should continue to be preserved, or whether it can be discarded with certain safeguards such as photographing and testing.

If the condition causing the accident needs to be fixed in order to eliminate the risk of future accidents, for example leveling off an uneven sidewalk paver or filling in a pothole, the answer is a bit more difficult. The property owner is faced with the dilemma of choosing between the risk of another accident and or being sanctioned for destroying evidence. In this case the wisest course of action is probably to remediate the dangerous condition as soon as possible and document it as best you can to offset any future claim of spoliation.

One thing is for sure, the spoliation issue is being raised with increasing frequency in personal injury cases. In the unfortunate event of an accident on your property we recommend you contact our litigation attorneys at Mackenzie Hughes for advice on how to respond.


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