With the trend of recent appellate court opinions that make it harder to assert and maintain the open and obvious danger doctrine, many attorneys focus on constructive notice. In Michigan, even if a condition is not open and obvious, a plaintiff’s claim may still fail when there is no evidence a defendant knew or should have known of an alleged dangerous condition.
As a result of this shift, plaintiffs’ attorneys have begun to rely on video surveillance to show how long a dangerous condition existed. For example, in a recent Sixth Circuit Court of Appeals opinion, a plaintiff argued that water must have been on the floor when the employee walked by, because in the seven minute interval between him passing, and the plaintiff’s fall, nine customers walked by that area without any bottled water and none of them appeared to spill anything.
The appellate court reversed the district court’s judgment, holding that even though the video was somewhat pixelated, a jury could still determine whether a particular customer spilled water. The appellate court recognized that if the jury found none of the passing customers spilled water, the hazard was present when the employee walked by, establishing constructive notice.
In addition to using video surveillance to establish constructive notice, the opposite is also argued. Specifically, plaintiffs’ attorneys will assert that the lack of video surveillance entitles plaintiffs to an adverse inference in their favor. However, recently, the U.S. District Court for the Eastern District of Michigan refused to draw this adverse inference when an employee took immediate steps in accordance with the company’s best practices to preserve security tape footage in connection with a fall. The security system automatically recorded over relevant footage, without any evidence of ill intent. This lack of an ill intent or culpable mindset, as required by federal spoliation law, was nonexistent.
Michigan precedent makes it clear, that distinct retention and storage of video surveillance policies are crucial in defending these types of matters. With respect to retention, the best risk management procedure is to have written policies covering storage and recycling procedures for video surveillance footage. In addition, the policy should explain litigation holds, and the process that follows for preservation in anticipation of litigation.
Specifically, there should be some kind of process that would prevent the automatic recycling procedure. Video surveillance footage can also be very helpful in providing a strong defense to a claim, identifying witnesses, or training staff for risk management purposes.
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