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Court Allows Evidentiary Sanction After Grocery Store Inadvertently Destroys Slip and Fall Evidence

Posted on October 20th, 2017

In this case, Plaintiff motions sanctions for spoliation of evidenceIn Brown v. Albertsons, LLC, No. 2:16-cv-01991-JAD-PAL (D. Nev. May 10, 2017), the Court examines Plaintiff’s claims of intentional spoliation of evidence after a tort action.

Plaintiff alleges she slipped and fell at an Albertson’s Store in Las Vegas on February 1, 2016. After over a year of discovery activity, Plaintiff moved for an order sanctioning Albertson’s for spoliation of evidence, arguing that Albertson’s destroyed or failed to preserve relevant evidence in violation of its legal obligations.

Albertson’s had investigated the slip and fall, taken photos (but not of the actual spill) and taken a statement from the injured party, prepared an incident report, collected surveillance videos, and communicated with its third-party claims adjuster.  Albertson’s contends that virtually all of this evidence was accidentally destroyed, whether because it inadvertently did not preserve the video or accidentally destroyed the incident report while copying it.

Plaintiff contends spoliation sanctions are warranted because of the destruction, and that Albertson’s was on notice of a potential claim because Plaintiff notified Albertson’s that she was injured and seeking medical attention. The manager on-duty at the time of the incident testified that Albertson’s knew that it had not complied with its own safety policies, knew it was liable for the fall, and had every incentive to destroy evidence. Plaintiff contends Albertson’s went out of its way to only retain evidence favorable to the store.

Plaintiff moved the Court to sanction Albertson’s by striking its answer as to liability and its comparative negligence affirmative defense. Albertson’s refutes Plaintiff’s claims of intentional destruction of evidence and claims it tried to recover lost surveillance footage. Albertson’s also claims Plaintiff has not shown any evidence of destruction of evidence after the February 22nd letter notifying Albertson’s of Plaintiff’s intent to file a claim.

The Court examined whether spoliation occurred, if Albertson’s failed in its duty to preserve relevant evidence, and when Albertson’s was on notice of its duty to preserve evidence relevant to upcoming litigation.

Plaintiff argues Albertson’s was on notice of a potential claim February 1, 2016, the date of the slip and fall because Plaintiff reported she was injured and intended to seek medical treatment. The Court disagrees, saying Albertson’s was put on notice February 9, 2016, when Plaintiff went to the doctor and discussed the incident with the third-party claim adjustor.

The Court could not find proof that Albertson’s acted intentionally or recklessly or for the purpose of advantage in litigation. Accordingly, the Court applied an evidentiary sanction allowing Plaintiff to put forth evidence that certain reports were lost or destroyed but allowing Albertson’s to introduce evidence of its own explanations of why these items were not lost or destroyed.

ILS–Plaintiff ESI Discovery Experts

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