One of the most critical pieces of evidence one can obtain in a slip and fall case is the relevant parts of the surveillance video from the store or business where the fall occurs. While most people can understand this, the average non-lawyer often misunderstands what part of the video is actually relevant to proving a slip and fall case in Texas. Due to this, people often fail to take steps to preserve the right evidence with a preservation of evidence letter. As a result, critical video evidence is spoliated and lost forever, making proving liability for a grocery store slip and fall more difficult if not impossible.
What Video Evidence is Relevant in a Slip and Fall Case?
(not an actual client)
The key video evidence relevant in a slip and fall case is not the video of the plaintiff falling, but the video of the 24-hour period preceding fall. In order to hold a business owner liable for a fall, the patron must produce evidence that shows that there was an unreasonably dangerous condition on the floor that the owner knew or should have known about upon a reasonable inspection, and that the owner/employees failed to remedy the condition or give patrons a warning so that the danger could be avoided. Albertsons v. Mohammadi, 689 S.W.3d 313, (Tex. 2024).
As a practical matter, the store owners and employees rarely admit that they knew a dangerous condition was present and that they did nothing about it. This would be grounds for termination at any business. They will defend the case by denying that the condition was there long enough for their employees to have reasonably discovered it. Now it is the patron’s burden of proof to show how long the condition was on the floor. The longer you can prove it was there, the more unreasonable it is for them not to have inspected the area and found it. Thus, having video evidence of the whole day leading up to the event can give you the ability to go back and see how the condition got on the floor and/or how long it was there before the victim encountered it.
What is Spoliation of Evidence?
Spoliation of evidence is the intentional or negligent failure to preserve relevant evidence that is in the exclusive possession of a party after a legal duty arises to do so. Brookshire Bros. V. Aldridge, 439 S.W.3d (Tex.2014). In the context of a slip and fall, the relevant evidence is the video footage that may show how long the condition was on the floor as well as when and how it got there. For a legal duty to arise, the Texas Supreme Court in Brookshire opined that while the video is still available, there must be an expectation that litigation is forthcoming and awareness that the video is relevant to the issues in the case. The destruction must be negligent or intentional and not merely accidental.
How Does Relevant Video Evidence Get Accidentally Destroyed?
Thanks to the opinion in Brookshire Bros., it is very easy for a premises owner to sit back and say “We accidentally let it be destroyed because we were not anticipating the case would go into litigation and we didn’t believe the prior video was relevant so we preserved the video of the fall” or “we preserved just the time the plaintiff was in the store thinking that was all that was relevant.”
Brookshire is a perfect example of how the relevant video disappears in a premises liability case. In that case, the Brookshire Bros. personnel preserved the video from the very brief time that the plaintiff entered the store until one minute after the fall. The injured person requested the video of the fall within the first 30 days. However, the injured party did not request the video of the time prior to that to see how long the condition may have been there until a lawyer for her requested it 11 months later. Like many grocery stores, “the cameras recorded surveillance video in a continuous loop that, after approximately thirty days, recorded over prior events.“(See Brookshire) Thus, when the prior time requested (later) was not preserved, it was simply recorded over and lost forever. This type of continuous feed surveillance video that “recycles” after a short time if not intentionally preserved is common in stores like Brookshire Bros., Kroger, Walmart, and Walgreens.
How Do You Trigger a Duty to Preserve the Relevant Prior Video Evidence?
In order to preserve the relevant evidence, you need to create your own evidence that establishes the store is aware that litigation may be imminent and the scope of what evidence is relevant (so they cannot simply play dumb.) A preservation of evidence a/k/a non-spoliation of evidence letter sent by certified mail (or another avenue that allows you to track exactly when it was received) is the way to do this. Your preservation of evidence letter needs to define exactly what (reasonable) amount of time you want preserved and that you believe it is relevant to your case. If you have no lawyer, you would be wise to state in there that there is a reasonable expectation of litigation regarding the injury.
When Should You Send a Preservation of Evidence Letter for Video Evidence of a Fall in a Store?
Send your preservation of evidence letter immediately after the fall. Some stores may have a video recycling period of only 7 days. If they do not receive your letter before then, even though you notified them of your fall, they can sit back and say sorry, “We didn’t know that far back was relevant,” or “We were not anticipating litigation.”
The Irony of Spoliation in Texas Grocery Store Slip and Fall Cases
If a court determines that spoliation occurred, they have some latitude in granting sanctions against the offending party. However, it is not without limitations. A common form of sanction requested is an instruction that the video would have shown evidence favorable to the innocent party. In Brookshire, the Texas Supreme Court reversed the trial court verdict after the trial court gave this instruction. In that case, even though Brookshire Bros. had been asked to preserve evidence “relevant to the fall” within the 30 days before it was destroyed, they were not specifically asked to preserve evidence going back 2.5 hours before the fall until almost a year later. The Brookshire employees testified that they did not see that evidence as relevant when deciding what to preserve.
In reality, slip-and-fall accidents in stores are so common that grocery stores have entire safety departments that take accident reports, interview eyewitnesses, and review videos related to the fall. In a slip-and-fall case, these people are trained to know what evidence is bad for their company. They know that video evidence prior to the fall can establish liability. When they turn a blind eye and let it get “recycled,” that is no accident. But the Texas Supreme Court basically chose to ignore this and put the burden on the injured victim to educate trained safety personnel about what video surveillance evidence is relevant in a slip and fall case. Thus, the court will not presume ill intent for letting the video get spoliated.
What is My Remedy When a Defendant Spoliates Video Evidence After I Send a Preservation of Evidence Letter?
If you believe that you properly triggered a duty to preserve evidence with a preservation of evidence letter and the defendant then destroyed evidence, the first step is to file a Motion for Sanctions for Spoliation of Evidence. It is up to the court to hear evidence and make this determination, not the jury. (See the Brookshire opinion at pages 19-20.) Your motion should also detail what you believe is an appropriate sanction. “Upon a finding of spoliation, the trial court has broad discretion to impose a remedy that, as with any discovery sanction, must be proportionate; that is, it must relate directly to the conduct giving rise to the sanction and may not be excessive. Key considerations in imposing a remedy are the level of culpability of the spoliating party and the degree of prejudice, if any, suffered by the nonspoliating party.” (Brookshire) The remedy can be an award of attorney’s fees, an instruction for the jury to make a presumption the evidence was favorable to the nonspoliating party, or even dismissal. But it must be no more harsh than the situation warrants based upon the level of culpability and/or the irreparable harm done to the case.
Get a Free Consultation
If you are injured by a slip-and-fall accident at a store, don’t wait until the evidence is gone to start protecting your rights. The recycling period, in your case, could be as little as seven days! At Simmons and Fletcher, P.C., our Houston slip and fall lawyers send out preservation of evidence letters on a regular basis. Get a free consultation to determine what steps you should take to preserve evidence in your case today by calling 800-298-0111.
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