Preserving Evidence – Surveillance Videos

When slip and falls are caught on surveillance video, some premises owners recognize the need to preserve the surveillance video in the event of potential claims or lawsuits. But how much of the video should be preserved, and what are the consequences of failing to preserve enough of the video?

At least two recent cases in Texas have held that premises owners have duties to preserve more than just the 10 minute period up to and including the slip and fall incident. See, Brookshire Bros., Ltd. v. Aldridge, No. 12-08-00368-CV, 2010 WL 2982902 (Tex.App. — Tyler 2010, no pet. h.) (for opinion, click here); Clark v. Randalls Food, No. 01-08-00732-CV, ___ S.W.3d ____, 2010 WL 670554 (Tex.App. — Houston[1st Dist] 2010, pet. denied)(for opinion, click here). The amount of time between the creation of the dangerous condition (i.e., spill, puddle, fallen object) and the accident is important to whether a plaintiff can prove that the premises owner knew or should have known about the danger, which is an essential element of the premises liability claim. Therefore surveillance videos may capture relevant temporal evidence about the danger or whether the owner was on notice of the danger.

If a store owner decides to preserve a portion of the surveillance video related to a slip and fall, it would be prudent to preserve enough video to show what happened immediately before, during and after the incident. In Clark v. Randalls Food, for example, the court held that the store had a duty to preserve the footage starting at least one hour prior to the slip and fall incident, rather than just the 6 minute period up to and including the slip and fall. Under different circumstances, even one hour may not be sufficient; each set of circumstances requires an inquiry into how much of the evidence would be relevant to the claim. If a store preserves some but not enough of the video, should the claim turn into a lawsuit, the plaintiff may be able to convince the trial judge that he or she is entitled to some remedy based on spoliation, which is the intentional or negligent failure to preserve relevant evidence. One such remedy is to instruct the jury that they may presume that the missing evidence was not good for the store, a presumption that will be difficult to overcome without the missing evidence.

From a practical standpoint, therefore, if a premises owner is on notice that surveillance video needs to be preserved or voluntarily decides to preserve surveillance video related to any accident on his premises, the premises owner should be aware that the footage of the actual accident is likely not the only footage he needs to preserve.

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