(914) 220-1086The New York Supreme Court, Appellate Division, Fourth Department affirmed a lower court order that punished a defendant restaurant for throwing away a key piece of evidence.
The plaintiff was sitting on the outside patio of the defendant Raspberries Café & Creamery in Oneida County. The tables on the outside patio were shaded by large overhead umbrellas. One umbrella fell and hit the plaintiff’s face and head. The plaintiff sustained injuries. Thereafter, the café threw away the umbrella.
The plaintiff filed a personal injury lawsuit. During the discovery process, the plaintiff requested access to the faulty umbrella. However, the defendant was unable to find the umbrella base and had already disposed of the umbrella. The plaintiff filed a motion seeking sanctions for discovery violations. The trial court granted the order and sanctioned the defendant by (1) precluding any defense evidence of the condition of the umbrella and (2) issuing an adverse inference charge.
If an individual or business reasonably expects that an item may become evidence in a future lawsuit, that item cannot be deleted, destroyed or disposed of during pending litigation. Illegal disposal of evidence is known as spoliation of evidence. Evidence must be preserved through the conclusion of the case to allow both parties to make use of the evidence. Only items that may be material evidence need to be preserved.
Here, the umbrella is material evidence to the case. The entire case hinges on its condition. A property owner such as Raspberries Café owes a duty of care to its patrons to provide a safe restaurant. If a dangerous condition or defect exists that the restaurant is aware of, the restaurant will be liable for any reasonably foreseeable injuries. In this case, the umbrella is the alleged dangerous condition created by the defendant. To prove that the umbrella was defective, the plaintiff will need to examine the umbrella, introduce it into evidence, and make arguments about its condition. Without the umbrella, the plaintiff’s case is hurt. This is known as prejudice.
When spoliation of evidence occurs, a party will file a motion for sanctions. There are a multitude of sanctions available, and judges have complete discretion in deciding sanctions. For relatively minor issues, the judge may decide not to issue a sanction. For serious issues, the judge may dismiss the case. Here, the judge decided to preclude defense testimony on the umbrella’s condition and charge an adverse inference. In deciding a proper sanction, the judge must consider how the spoliation has prejudiced the moving party. Then the judge must tailor a sanction that “achieve[s] a fair result.”
By precluding defense testimony on the condition of the umbrella, the judge took away the defendant’s ability to present any testimony about the condition of the umbrella. For instance, the defendant would not be able to present testimony that the umbrella was brand new, did not have any cracks or rust, and was fully operational on the day of the accident. However, the plaintiff can present testimony on the issue. The defendant will be unable to rebut this testimony with its own evidence.
The jury will be given notice of the adverse inference. An adverse inference instruction allows the jury to conclude that the defendant had intentionally destroyed evidence that was favorable to the plaintiff. This will again work in the plaintiff’s favor to help even the playing field at trial.
If you or a loved one has been injured in an accident, you may have a valid negligence claim. Call the Law Offices of Thomas L. Gallivan, PLLC immediately to discuss your case and review your potential claims.
Manley v. Raspberries Café & Creamery, 306 CA 14-01091 (4th Dept. 2015).
