In April of 2020, a Federal District Court Judge in the Eastern District of Pennsylvania denied a Motion for Summary Judgment filed by a TJ Maxx franchisee, which argued that the personal injury plaintiff’s claim should be dismissed as there was no evidence that the store had actual or constructive notice of a spilled liquid condition on which Plaintiff allegedly slipped and fell.
In denying the Motion, Judge Darnell Jones, II, found that the Plaintiff was entitled to an adverse inference that TJ Maxx had destroyed security footage requested by the Plaintiff, and that it could be reasonably inferred that the footage was not produced because it contained material that would damage TJ Maxx’s defense.
Critical to the Court’s analysis was the fact that the Plaintiff had specifically sent a letter to the store’s insurer six days after the fall occurred, well within the videorecording system’s storage capacity, which requested the preservation of “any video recording taken on the day of Plaintiff’s fall,” as well as video of “the location where the trip and fall occurred, and the surrounding areas in the location (from all camera angles) even if [they] do not capture the actual fall.”
The surveillance video was later requested by the Plaintiff in discovery after litigation had commenced. TJ Maxx responded that after reviewing its security footage, Plaintiff’s fall was not captured on any camera angle and, therefore, there was no video to be produced.
In responding to the Motion for Summary Judgment, the Plaintiff argued that its preservation letter and the discovery requests specifically requested the production of video from the various cameras in the area of the alleged accident, even if the fall itself was not captured. The Court found that TJ Maxx’s failure to produce any video evidence from the date of the accident was motivated by a fear that the contents of the video would harm them, and that the Plaintiff was entitled to an adverse inference against the Defendant that was sufficient to overcome the Motion for Summary Judgment.
The Court specifically took issue with the TJMaxx’s argument that the Plaintiff only requested preservation of footage of the precise spot where she fell, noting that the request for footage of “the location where the alleged accident occurred” could reasonably be read to refer to the entire store.
This decision, demonstrates that an Insured’s failure to preserve all requested evidence, even if determined by the Insured not to contain any relevant footage, can later be weaponized by a savvy plaintiff’s attorney. Insureds should be instructed to preserve all video requested by a claimant or plaintiff, regardless of whether they consider it to be relevant or not.
Insureds put on notice to preserve security footage requested by a personal injury claimant should be instructed to interpret this request quite broadly and to preserve as much video as possible to avoid a later allegation that the Insured failed to produce requested video in an effort to suppress damaging evidence. In discussing this with Insureds, insurance carriers and claims investigators should endeavor to encourage a full preservation of all video evidence by noting that the fact that the video is preserved does not mean that all of it has to be provided to a claimant. The scope of any video production can later be limited by defense counsel through appropriate discovery responses and/or interposing appropriate objections.
Each case involving security footage issues will differ based on the facts of the case, the legal theories involved, and the extent of video captured. Wright & O’Donnell is available to assist you and your Insureds in their defense of personal injury claims and litigation. For more information, please contact Matt Jones at Wright & O’Donnell, 610-940-4092.