In Osmulski v. Oldsmar Fine Wine, the Second District Court of Appeal recently explained the extent to which a business owner is required to keep video evidence of an accident occurring on the business’ property.
Amy Osmulski broke her right wrist in a slip and fall accident while shopping at Oldsmar Fine Wine in Pinellas County. The injury required two surgeries and experts testified that more may be necessary. In a recorded statement to OFW’s insurance company, Osmulski said that she slipped after crossing a floor mat just beyond the store’s front door. According to Osmulski, it had been raining that day and the mat was wet.
After Osmulski was unable to reach an agreement with the insurance carrier, she sued OFW for negligence. She also filed a request for the company to produce any video surveillance footage available from the day of the accident. OFW responded that it didn’t have the video. In a later deposition, OFW’s owner said that although the store had 16 video cameras, all of which were functioning on the day of the accident, the cameras retain video for only 30 days. The owner additionally stated, however, that he could have made a copy of the video, as he had done in prior incidents when the store had been robbed.
Through her attorney, Osmulski later obtained evidence that OFW was previously involved in a slip-and-fall accident in which the owner testified that he looked at the video tape to see if the injured person was running before she fell. The owner nevertheless maintained that he did not view the footage of Osmulski’s fall.
Prior to trial, Osmulski filed a motion arguing that OFW intentionally discarded the video tape. The footage was necessary for her to prove that customers tracked rainwater into the store, making the floor wet and dangerous, and that OFW staff failed to fix the situation, according to Osmulski. It was also needed to disprove OFW’s claim that she was drunk and running into the store when the accident happened.
The trial court denied Osmulski’s request that the jury be instructed that the absence of the video footage raised a presumption that the store was negligent and that the company be sanctioned for destroying the tape.
On appeal, the Second District affirmed the decision. OFW was not required to preserve the video footage because it had not been requested to do so. The Court rejected Osmulski’s argument that a defendant may be required to preserve evidence without a specific request where a claim related to it is reasonably foreseeable. Furthermore, according to the Court, the negligence claim was not foreseeable in this particular case. “[A]t the time the video recordings were discarded or taped over, no lawsuit had been filed, no demand for preservation of the evidence had been made, and OFW’s principal testified that even though he was aware that Osmulski had made a claim with the insurance carrier, he had been told that Osmulski was only seeking payment for her medical expenses,” the Court explained.
Evidence issues such as this often arise in Florida personal injury cases. As this case shows, a plaintiff’s access to evidence can mean the difference between winning and losing a case. If you were recently injured in an accident, call the South Florida personal injury attorneys at Anidjar & Levine today. We have a long history of successfully representing clients throughout the region, including in Boca Raton, Coral Springs and Pompano Beach. You can reach our Ft. Lauderdale offices at 800-747-3733 or by filling out an on-line “Contact Us” form.
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