The effective and proper use of premises camera surveillance is just the first step in whether or not video evidence will be used in litigation.  This first article in a series considers when a duty to preserve video surveillance evidence arises.  When this duty arises is fact specific and will vary from state to state.  Some courts have addressed the issue while others have not provided much in the way of guidance.

The majority approach follows the common law duty to preserve evidence

A majority of jurisdictions, including federal courts, hold that the duty to preserve arises if litigation is reasonably foreseeable or anticipated.  These courts tend to follow the common law duty to preserve evidence.  While there is no bright-line rule for when litigation may be reasonably foreseeable, the specific facts of each case will govern when the duty arises.  Some facts considered by courts in these jurisdictions include the following:

• the type and extent of the injury,
• whether a plaintiff reports the incident and an incident report is made,
• the extent to which fault for the injury is clear,
• the potential for financial exposure if found liable,
• the relationship and course of conduct between the parties, and
• the frequency with which litigation occurs in certain circumstances.

For example, Nevada state courts adhere to the common law duty to preserve documents, tangible items and information relevant to litigation that are “reasonably calculated to lead to the discovery of admissible evidence.” Bass-Davis v. Davis, 122 Nev. 442, 450, 134 P.3d 103, 108 (2006).  The pre-litigation duty is triggered “once a party is on notice of a potential legal claim.”  In Nevada, a party is on notice “when litigation is reasonably foreseeable.”  In one Nevada slip-and-fall case, the fact that the incident report was made at the scene and the fact that plaintiff was carried out of the store by EMS were sufficient to trigger defendant’s duty preserve relevant video evidence.  Demena v. Smith’s Food & Drug Centers, Inc., 2012 WL 3962381 (D. Nev. 2012).

Texas courts follow the common law approach as well, but Texas also requires that the evidence be within the possession or control of the premises owner and material and relevant to the claim.  See Brookshire Bros., Ltd. v. Aldridge, 438 S.W.3d 9 (Tex. 2014).

State courts in Illinois and Louisiana both consider whether the duty to preserve video evidence arises by agreement, contract, statute, special circumstances, or voluntarily.  See Carter v. Hi Nabor Super Market, LLC, 168 So.3d 698 (La. Ct. App. 2014); Daleus v. Target Corp., No. 10 C 4100, 2012 WL 3835836, *5 (N.D. Ill., Sept. 4, 2012).  These two jurisdictions then consider whether a reasonable person should have foreseen that the evidence was material to a potential civil action. See Carter, 168 So.3d 698; Daleus., 2012 WL 3835836, *5.  However, in Illinois, simply being alerted of an accident coupled with the opportunity to exercise control over the evidence is not sufficient to give rise to a duty to preserve any camera surveillance.  Daleus., 2012 WL 3835836, *5.

Jurisdictions with no bright-line rules

Not all jurisdictions follow the majority common law duty to preserve. For example, California state courts have not developed any particular analysis to apply to a duty to preserve evidence.  One unpublished California superior court decision in Pal v. Nordstrom, Inc., No. B203004, 2009 WL 81383, at *5 (Cal. Ct. App. Jan. 14, 2009), stated, “We likewise are unaware of any authority to support a claim that a business proprietor has a legal duty to produce video surveillance . . .”

Similarly, here in North Carolina, research does not show that state courts have considered when a duty to preserve evidence applies to video footage.  Even North Carolina federal courts do not appear to have definitively determined when the duty would arise. In Hayes v. GGP-Four Seasons, L.L.C., No. 1:10CV423, 2011 WL 6027443, at *9 (M.D.N.C. Dec. 5, 2011), a mall patron was shot inside a retail store by another mall patron and sued the mall and store.  In deciding the defendants’ dispositive motions, the Hayes magistrate judge assumed that the defendants had a duty to preserve the security camera footage in question and failed to do so.  Another case, Cook v. Lewis, No. 5:12-CT-3219-D, 2014 WL 2894999, at *2 (E.D.N.C. June 25, 2014), considered missing video footage in a prisoner’s case against the State, and suggested only that if there is notice that footage is relevant, the duty could arise.

Jurisdictions offering concrete guidelines

Still, other jurisdictions provide more finite guidance.  For example, in Florida, state courts consider whether (1) the evidence existed; (2) the party had a duty to preserve the evidence; and (3) the evidence was crucial to an opposing party’s ability to prove its prima facie case or defense.  Osmulski v. Oldsmar Fine Wine, Inc., 93 So.3d 389, 392 (Fla. Dist. Ct. App. 2012).  In Osmulski, the issue before the court was whether the defendant had a duty to preserve the video surveillance.  The plaintiff in Osmulski slipped after walking in the front door of a store owned by defendant.  Within a week of the accident, plaintiff contacted the defendant’s insurer.  Copies of any video surveillance recordings of the premises from the day of the accident were requested in the lawsuit that followed.  Defendant responded that it had no such videos.  In the past, Florida courts had required a party to preserve video evidence when the premises owner could reasonably have foreseen the plaintiff’s claim. However, the Osmulski Court held that the duty to preserve the video evidence arose if (1) there was knowledge that an accident or incident arose on its property, (2) the same defendant has a video camera that may have recorded the accident or incident, and (3) a written request was made to preserve the video footage before it was lost or destroyed in the normal course of the defendant’s video operations.

As reflected by the cases above, whether a duty exists to preserve video evidence and when that duty arises can vary greatly by state and by the facts of each case.  Nevertheless, these cases are instructive.  To err on the side of caution, premises owners would be wise to preserve the video evidence under the following circumstances: (1) if there is a reasonable belief that litigation will arise from the incident, (2) if the video evidence is within the premises owner’s possession, and (3) if the video evidence is material and relevant to the claim.  The next parts in this series will address how much of the video evidence should be preserved and what could happen if premises owners do not preserve that evidence.