A Carluzzo Rochkind & Smith note: Following is an excellent article by Virginia Lawyers Weekly. We did not handle this case, but it brings up important points your personal injury lawyers should be familiar with. For more than 30 years our personal injury lawyers in Manassas have helped clients with such matters in Prince William County, Fairfax County, Woodbridge, and throughout Northern Virginia. If you have any questions or would like to schedule an appointment, please contact our law firm at (703) 361-0776.
Sanctions: Company sanctioned for failing to preserve accident video
By Virginia Lawyers Weekly – 12/16/2024
Where a grocery store failed to preserve video allegedly showing a store employee hitting a customer’s shopping cart with a pallet jack, and the customer was prejudiced by the destruction, the court will instruct the jury at trial that it may presume that the lost video footage was unfavorable to the company.
Background
Edward Whitmore sues Kroger Limited Partnership for negligence. Whitmore alleges that he was shopping in the dairy aisle of a Kroger grocery store when a Kroger employee hit his shopping cart with a pallet jack, pinning Whitmore between his shopping cart and the dairy shelving unit—causing him serious harm.
Whitmore now argues that Kroger’s failure to preserve the video footage warrants either (i) spoliation sanctions under Federal Rule of Civil Procedure 37(e), such as a jury instruction that the jury must or may presume the lost evidence was unfavorable to Kroger or (ii) default judgment in favor of Whitmore.
Spoliation
Spoliation has occurred where (1) electronically stored information, or ESI, should have been preserved in the anticipation or conduct of litigation; (2) it was lost; (3) the loss occurred because a party failed to take reasonable steps to preserve it and (4) it cannot be restored or replaced through additional discovery.
Kroger concedes that elements two and four are satisfied. Thus, the court must only consider the remaining elements: whether the video footage should have been preserved in anticipation of litigation and whether Kroger’s failure to preserve the footage was reasonable.
First, the video footage should have been preserved in anticipation of litigation both because Kroger was on notice that Whitmore intended to sue and because the video footage would have been relevant to the case. Second, Kroger failed to take reasonable steps to preserve the video footage, given that Whitmore had already announced his intention to sue.
Sanctions
Whitmore is unquestionably prejudiced by the lack of video evidence in this case. Kroger’s potential arguments at trial include disputing (i) whether Whitmore was using a push-style shopping cart or a motorized cart; (ii) whether contact was made with such a cart and/or (iii) whether Keefe was reasonable in her operation of the pallet.
Without video evidence, these disputes largely boil down to witness testimony and credibility contests. And unfortunately for Whitmore, he has scarcely a witness from the store to support his version of events. At trial, it is Whitmore’s word versus the word of Keefe, Wright, Curlis, Harrison and others. In this light, Whitmore is severely prejudiced by Kroger’s failure to preserve any video footage of the store’s premises from the relevant time frame.
The court does not find, however, that Kroger intentionally spoiled the evidence. The evidence mostly suggests that Kroger had a disorganized and ineffective mechanism for reporting incidents—a process which failed and has apparently changed in the years since. Considering the equities, the court will instruct the jury at trial that it may presume that the lost video footage was unfavorable to Kroger.
Whitmore argues for a greater sanction on the basis that “Kroger has been materially misrepresenting facts to Plaintiff, under oath, for the duration of litigation.” Whitmore notes that, from the beginning, Kroger asserted and maintained a legal and factual position that Whitmore’s “cart or buggy, whatever it was, was never struck by a pallet of milk maneuvered by an employee.”
Yet, as Whitmore points out, claim notes between Sedgwick and Kroger suggest that Kroger knew from the beginning that contact had indeed occurred between a store pallet and Whitmore’s cart. This call occurred well before litigation began, such that, if Kroger and Kroger’s counsel were on notice about this admission, Kroger never should have taken its subsequent position disputing that contact occurred with Whitmore’s “buggy,” without some further reason to discredit the prior admission.
However the court simply lacks sufficient evidence to find that the discrepancy between Kroger’s legal position and the Sedgwick claim note constitutes fraud upon the court. While Kroger is not “blameless,” neither is Kroger clearly or severely culpable. The court denies plaintiff’s motion to the extent that it requests greater sanctions.
Plaintiff’s motion for sanctions granted in part, denied in part.
Whitmore v. Kroger Limited Partnership I, Case No. 6:23-cv-00004, Dec. 6, 2024. WDVA at Lynchburg (Moon). VLW 024-3-640. 20 pp.
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