As a Florida personal injury lawyer who represents injured people, I have the burden of proving that the person or business that injured my client is negligent. In many cases, we need to obtain or preserve evidence ASAP or the evidence may be lost forever. If important evidence is lost, I may not be able to assist my injured client.
In this day and age of technology, electronically stored evidence is all around us. If we do not act quickly after a truck accident, medical malpractice or slip and fall to request the evidence be preserved, the evidence will be deleted or copied over. I usually see this problem, when the client initially handles their own case or waits a while to retain me to assist them.
A recent case, out of Florida's Second District Court of Appeal, provides a real life example of how the lack of evidence and negatively impact an injured person's recovery. In Osmulski v. Oldsmar Fine Wine, the plaintiff slipped and fell as she was entering a business establishment. Her claim was that it was raining outside and the store did not keep the mat in front of the door dry and she fell when entering the store.
The defendant store, as defendants always do in Florida slip, trip and fall cases, took the position that it was the plaintiff's fault. After the lawsuit was filed, the plaintiff requested the video surveillance tapes of the area of the fall and the defendant said that it didn't have any video surveillance. During the lawsuit, it was determined that the store had 16 video surveillance cameras and at least one would have recorded the incident. However, the video surveillance had to be saved or lost within 60 days. The plaintiff filed a motion with the court asking the court to find that the defendant spoliated (spoiled) the evidence. The court denied the motion. The case went to trial and the jury found the plaintiff 65% at fault – so the jury verdict was decreased by 65%. Plaintiff appealed and the Florida Court of Appeal ruled with the trial court.
Spoliation of Evidence – A Lesson Learned the Hard Way
The Court of Appeal reminded us all again that an injured person has to make a formal request for preservation of evidence. Specifically, the court said:
We hold that if a defendant has knowledge that an accident or incident has occurred on its property and that same defendant has a video camera that may have recorded the accident or incident, that defendant has a duty to obtain and preserve a copy of any relevant information recorded by that camera if a written request to do so has been made by the injured party or their representative prior to the point at which the information is lost or destroyed in the normal course of the defendant's video operations.
Even though the injured person had discussed the incident with the insurance company, she did not make a formal request to the insurance company to preserve the video surveillance so business had no duty to preserve the evidence.
Florida personal injury law is complex and there are many traps that can add insult to a client's injuries. If you have any questions about a Florida personal injury claim contact Lake County personal injury lawyer, Guy S. DiMartino, at (352) 267-9168 or request one of my free information books that can prevent a very costly mistake. I handle cases throughout Central Florida including Leesburg, Tavares, Howey-in-the-Hills, Mount Dora, The Villiages, Clermont, Winter Garden and Ocala.