What if Walmart Loses the Videotape and Other Missing Evidence?
What can be Done About Missing Evidence of Slip and Falls Like Videotapes by Walmart or Target or Other big Box Stores
Missing evidence happens in cases with alarming frequency.
Sometimes, it’s missing videotapes. A person who was injured in a slip and fall might assume that because he or she filled out an incident report that the store would keep a videotape for future use.
But, big box stores and other retail establishments can’t always be trusted (one exception I have found through the years is Walmart, if there’s a videotape and an injury, Walmart typically will produce the videotape). But stores like Meijer’s rarely seems to have videotape of the injury. It makes us skeptical at times.
Indiana courts have laws that pertain to missing evidence situations.
It is called Spoliation of Evidence. And sometimes a jury can be told that the missing evidence must be construed as being unfavorable to the store if they fail to produce it. But, in order to achieve that instruction, a court will do an analysis of the missing evidence — why it happened and how important the missing evidence is to the injured person’s jury case.
The courts uniformly condemn spoliation, and the intentional destruction of potential evidence in order to disrupt or defeat another person’s right of recovery is highly improper and cannot be justified. Once spoliation is found, potent responses exist under Indiana Trial Rule 37(B) authorizing trial courts to respond to discovery violations with such sanctions “as are just,” which may include dismissal of all or any part of an action. Determining whether sanctions are warranted and, if so, what they should include, requires a court to consider both the spoliating party’s culpability and the level of prejudice to the party seeking discovery.
Culpability can range along a continuum from destruction intended to make evidence unavailable in litigation to inadvertent loss of information for reasons unrelated to the litigation. Prejudice can range along a continuum from an inability to prove claims or defenses to little or no impact on the presentation of proof. A court’s response to the loss of evidence depends on both the degree of culpability and the extent of prejudice. Even if there is intentional destruction of potentially relevant evidence, the sanctions may be limited if there is no prejudice to the opposing party. In addition, even if there is an inadvertent loss of evidence but severe prejudice to the opposing party, that too will influence the appropriate response, recognizing that sanctions require some degree of culpability.
Regardless, whether videotape evidence is missing or not, it doesn’t mean your case is lost.
At Shaw Law we believe a missing videotape can raise as many questions for the defense as it does for the injured person — and sometimes, more.
After all, if the store had you fill out an incident report and knew you were injured, then why did it not preserve the evidence vital to show it was not at fault?
The answer, unfortunately, can simply be because the store or business knew the videotape did not show what it liked — that the videotape confirmed the presence of water or a liquid substance on its floors for a significant amount of time.
Here, at Shaw Law, we believe an effective cross-examination in court or at a deposition can help establish that a missing videotape should be assumed to help the injured person and not the store or business.
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