March 04, 2014 BY Def Admin
Surveillance, Swords, And Shields- Oh My
At the time of an incident it is often difficult to determine whether litigation will ensue. Even more difficult to determine is what documents, reports, and other evidentiary items may be relevant to that litigation. Proper evidence retention can not only be used to shield a defendant property owner from spoliation issues and sanctions, but it can also be used as a sword. By encouraging thorough records-keeping and maintenance prior to an incident, and the retention of that evidence following an incident, a property owner may be able to cut down a plaintiff’s case.
For example, the Court of Appeals of Georgia recently discussed the knowledge of hazards required of store owners in slip and fall lawsuits. In Pirkle v. Quicktrip Corp., 2014 WL 260561 (Jan. 24, 2014), the Court affirmed summary judgment for defendant Quiktrip in a slip and fall case, finding that the store had no actual or constructive knowledge of the liquid on which the plaintiff allegedly slipped. The Court reasoned that plaintiff’s evidence of the Defendant’s actual or constructive knowledge of liquid on the floor was speculative at best. In addition to reiterating the knowledge requirements to prove liability on the part of a store owner, this case illustrates the practical importance of proper records-keeping, maintenance, and evidence retention both before and after an incident occurs.
In Pirkle, plaintiff Pirkle claimed he slipped and fell on water located next to the checkout counter of defendant Quiktrip’s store. Plaintiff’s evidence as to Quiktrip’s actual knowledge of the liquid consisted of witness testimony stating: (1) that a store employee placed a bucket and mop to the right side of the checkout counter shortly before Pirkle’s fall, and (2) that another customer had dropped a package of bottled water near the area where Pirkle fell shortly before the incident. No mop and bucket, however, could be seen on the surveillance video. Additionally, no evidence of any reports regarding spills or liquid on the floor prior to plaintiff’s fall existed.
Further, the plaintiff testified that he did not recall seeing any water in the area of his fall when he entered the store. The video from Quicktrip’s security camera showed Pirkle entering the store at 7:06:13 a.m. and walking directly across the area where he would later fall at 7:08:25 a.m. At that time, Pirkle appeared to be looking down at the floor in front of the cash register. Between 6:59 a.m. and 7:08:25 a.m., the video showed several customers walking across, checking out, and standing in the area where Pirkle fell.
The Court of Appeals ruled that, to defeat summary judgment, the plaintiff had to present evidence that the store had actual or constructive knowledge of the hazard, and that the plaintiff lacked knowledge of the substance or for some reason attributable to the store was prevented from discovering it. Despite deposition testimony given by a witness stating that he observed a Quiktrip employee mopping in an aisle adjacent to where the plaintiff fell shortly before the accident, the court ruled the store had no actual knowledge of the hazard. The Court found the witness’ testimony that he saw a store employee mopping and then setting the mop and bucket against the counter before checking customers out too speculative to show that this was the cause of the water on which plaintiff slipped.
The Court held that plaintiff’s evidence was speculative, at best, as to what caused Pirkle’s fall and, therefore, did not and could not establish actual knowledge. The Court also deemed Quiktrip not to have had constructive knowledge of the hazard. To establish constructive knowledge, a plaintiff must show that (1) a store employee was in the immediate vicinity of the hazard and could have easily seen the substance, or (2) the foreign substance remained on the floor long enough that through ordinary diligence by the store employees it should have been discovered.
Video surveillance evidence established that no Quiktrip employee had been in or around the area in which the plaintiff slipped for eight (8) minutes before the fall and that the cashier behind the checkout counter could not see the area in question. Had the video evidence not been preserved, or worse had it never existed in the first place, the defendant likely would not have been able to prove the location of it’s employees prior to and at the time of plaintiff’s slip and fall. Based upon what the video showed the Court determined that no store employee could have easily seen the water prior to plaintiff’s slip and fall.
What’s more, Quiktrip presented evidence that it had inspection procedures in place which required employees to inspect the store’s floors every 30 minutes and spot mop if needed. The inspection procedure further required the manager to a do shift walk through the store at the beginning of each shift. On the date of the incident, the Quiktrip employee was able to establish he inspected the floor and spot mopped where needed. To rebut plaintiff’s claims as to constructive notice, Quiktrip produced the inspection logs which showed that an employee performed an inspection of the floors every 30 minutes, and that such inspection had occurred the morning of the incident. For these reasons, the Court held that where the property owner can prove that an inspection occurred “within a brief period” before an invitee’s fall, the inspection procedure will be deemed adequate and reasonable.
The defense of this case was helped in large part by the maintenance of routine inspection records and the retention of video surveillance. As stated above, this case illustrates the practical importance of maintaining and preserving such records. Doing so not only helps to avoid any potential spoliation issues, but as seen inPirkle, it can also defeat a plaintiff’s claim that the owner had knowledge of a dangerous condition. Not only did the defendant store in Pirkle use its surveillance video, inspection procedures, and safety policies and records to shield against the plaintiff’s allegations, it in turn also used the same evidence to pierce the plaintiff’s case. The importance of establishing quality, routine inspection and safety policies, adhering to the same, and preserving evidence for potential litigation cannot be understated. If done correctly, as the retail store defendant in Pirkle did, such evidence will more likely take the form of a sword as opposed to a shield.
The Journal is a publication for the clients of Drew Eckl & Farnham, LLP. It is written in a general format and is not intended to be legal advice to any specific circumstance. Legal Opinions may vary when based upon subtle factual differences. All rights reserved.
H. Michael Bagley