[authors: Joshua E. Roberts and Emmet J. Schwartzman]

Osmulski v. Oldsmar Fine Wine, Inc., No. 2D10-5962 (Fla. 2d DCA June 29, 2012).

In a commercial premises liability case, the Second District Court of Appeal (Lakeland, Fla.) appears to have imposed a bright line rule that there is no duty to preserve surveillance video absent a specific written request by the claimant (or the claimant’s representative) to do so after an accident and before the video is lost or destroyed. Under the court’s ruling, absent such a request, spoliation of evidence arguments by the claimant, which may subject property owners to adverse inference instructions or rebuttable presumptions of negligence, are unavailable.

Facts

Plaintiff shattered her wrist after slipping and falling in Defendant’s store. In the course of litigation, she served the defendant with a request to produce any video surveillance recordings of the premises from the day of the incident. Although the store had surveillance cameras in operation on that day that would have recorded the incident, the surveillance recordings were automatically deleted (pursuant to the store’s surveillance retention policy) before the plaintiff’s request for production. The store’s principal admitted that he could have made a copy of the recordings before they were deleted, but he did not because “no one ever asked him to preserve the video recordings.” Plaintiff filed a motion alleging intentional spoliation of the video surveillance recording and requested an adverse inference jury instruction that the defendant was negligent and/or a rebuttable presumption of negligence existed.

Court Opinion

The Second District Court of Appeal agreed with the trial court’s decision that there was no duty to preserve the video surveillance recordings. Plaintiff was not entitled to a spoliation jury instruction because she failed to request that the video recordings be preserved. The Court referred to the recent proliferation of digital video technology but acknowledged the numerous uncertainties surrounding it, including quality of the recordings, control over the videos, manual versus automatic deletion, etc. Given the “myriad of uncertainties,” the Court determined “it would not be fair to businesses or homeowners to require them to preserve video evidence in the absence of a written request to do so.” Specifically, the Court held:

[I]f 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.

(Emphasis added).

The Court affirmed final judgment for the defendant, holding that the trial court did not err in denying the plaintiff’s request for a spoliation jury instruction because she had never made a written request to preserve the evidence.

Florida businesses with surveillance video systems should pay special attention to any written request to preserve video surveillance evidence. Such written requests are more likely in the wake of Osmulski. Failure to preserve surveillance video that has not already been destroyed or deleted after receipt of a written request is likely to subject the business to a variety of possible sanctions for spoliation. At least according to this opinion by the Second District Court of Appeal, absent a written request, video data may be deleted in accordance with ordinary retention policies.