Archive: August 7, 2008

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Supermarket’s Failure to Retain Video Surveillance Footage of Periods Preceding and Following Slip and Fall Incident “Shocks the Conscience of the Court” and Warrants Adverse Inference Instruction

Supermarket’s Failure to Retain Video Surveillance Footage of Periods Preceding and Following Slip and Fall Incident “Shocks the Conscience of the Court” and Warrants Adverse Inference Instruction

Bright v. United Corp., 2008 WL 2971769 (V.I. July 22, 2008)

In this case, plaintiff alleged that she slipped on drops of "a thick, pink liquid" while shopping at defendant supermarket, sustaining injuries to her left leg and ankle.  She sued for negligence, bodily injury, medical expenses, lost income and lost future earning capacity.  Defendant moved for summary judgment contending that it did not have notice of the spill which may have caused plaintiff’s injuries.  The trial court granted the motion, holding that, because plaintiff failed to provide any evidence that defendant knew or should have known about the substance on the floor, no reasonable jury could find that defendant had breached its duty to plaintiff as a matter of law.  Plaintiff appealed, and the Supreme Court of the Virgin Islands reversed and remanded, finding that there was a genuine issue of material fact as to constructive notice.

Plaintiff’s fall was captured on defendant’s closed-circuit video surveillance system, which was comprised of both a digital hard drive that records only a finite amount of data before reusing itself and a video recorder.  The digital footage was automatically recorded over every few weeks unless it is manually copied from the digital hard drive to the video recorder.  The supermarket’s manager testified that he examined the footage of plaintiff’s fall immediately after being notified of her fall, and the video failed to show anything visible on the floor at the time of the fall.  Concluding that plaintiff "probably tripped on herself," the manager testified that he elected not to review or copy any of the footage prior to or after the fall.  He also testified that the store had no set procedure for retaining video footage of slip and fall accidents and that the store simply retained the footage of the actual fall in plaintiff’s particular circumstance.

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