The Law Office of Kurt H King

Missouri history of sanctions for spoilation of evidence dates back to the 1882 case of Pomeroy v. Benton where the Court fashioned an adverse ruling against a defendant who concealed evidence of damages to his partner.  Many cases since address whether a court should grant an adverse inference or sanctions due to spoilation.

We argued this issue in a 2015 jury case in Clay County, Missouri, the Court ultimately denying request for an adverse inference based on what we believed to have been wrongful destruction of video of plaintiff’s fall captured by surveillance camera mounted on the exterior of the grocery store.  The store claimed to have mistakenly preserved video of the day after plaintiff’s fall, having taped over the day that plaintiff actually fell.  A risk manager for the chain store timely requested video of the fall–obtaining the “day after” video–but the store claimed it received no request for the correct video within the allotted 30 days after plaintiff’s fall.

The Circuit Court of Clay County, Missouri, apparently determined that the store did not intentionally destroy (by tape-over 30 days later) video of plaintiff’s fall, and/or that it did not do so with intent to defraud.

Note that months passed after the fall before the undersigned began representing plaintiff, and no letter issued shortly after plaintiff’s fall demanding the store preserve video and other evidence of the fall.  Such a preservation demand or other duty to preserve can be key.  We know not how the Court weighed our argument that: 1) the store immediately knew of the fall (its manager having assisted at the scene and reported the incident to superiors); 2) the video was in fact timely requested although that of the wrong date actually sent; and, 3) the store knew full well of a need to properly preserve video and other evidence of  customer injury known to it.  However, our impression is that the lack of an early demand for preservation of evidence was not decisive in this case to this judge.  Indeed, other courts indicate failure to have an adequate retention policy may constitute spoilation under certain circumstances.  But this store did have a preservation system in place, that being a 30 day tape over policy by  which previous video is simply taped over on the 31st day absent request to preserve made within 30 days.

P.S.–Weeks after this trial, a plaintiff’s attorney with a similar case against this defendant called for my thoughts.  He mentioned that the defendant store also lost/destroyed video of his client’s injury.  Wonder how often Hy-Vee fails to preserve and whether it is truly accidental?

Law Office of Kurt H. King, 20 E. Franklin, Liberty, Clay County, Missouri 64068; 816.781.6000

Personal Injury, Workers’ Compensation, Litigation, General Matters