On June 29, 2012, Florida’s Second District Court of Appeal issued its opinion in the case of Aimee Osmulski v. Oldsmar Fine Wine, Inc. (Case No. 2D10-5962). The court held that a potential defendant does not have a pre-suit duty to preserve store surveillance video if the claimant has not requested that the video be preserved.

Trial Court Ruling

In Osmulski, the plaintiff slipped and fell at an Oldsmar Fine Wine (OFW) store. Video surveillance of the incident was automatically deleted shortly after the incident. At trial, the plaintiff argued that the automatic deletion amounted to spoliation of evidence. The plaintiff asserted that even though she never sent a letter requesting that the video be preserved, OFW had a duty to preserve the evidence because her negligence claim was reasonably foreseeable. The trial court denied the plaintiff’s request for a jury instruction that there was a rebuttable presumption of OFW’s negligence or that the missing video would be unfavorable to OFW. The jury determined that the plaintiff was 65 percent liable and OFW was 35 percent liable. On appeal, the Second District Court of Appeal affirmed the trial court’s ruling, holding that “there could be no spoliation of this evidence because [the plaintiff] had not asked OFW to preserve it.”

By way of background, a party may be penalized at trial for intentionally or inadvertently destroying evidence. A court can use presumptions or inferences to penalize a party’s alleged spoliation of evidence. However, before effecting a remedy for the spoliation, the court must determine whether (1) the evidence existed at one time, (2) the spoliator had a duty to preserve the evidence and (3) the evidence was crucial to an opposing party’s ability to prove its case or a defense. In regard to the video surveillance at issue in Osmulski, the primary legal analysis concerned whether the defendant had a duty to preserve the evidence.

Conflict at the Appellate Level

In reaching its decision in Osmulski, the Second District Court of Appeal noted that the Fourth District Court of Appeal has held that there can be circumstances in which a defendant has a duty to preserve evidence even if there has not been a request to preserve the evidence. (See, e.g., American Hospitality Management Co. of Minnesota v. Hettiger, 904 So.2d 547, 549 (Fla. 4th DCA 2005); Hagopian v. Publix Supermarkets, Inc., 788 So. 2d 1088, 1090 (Fla. 4th DCA 2001)) The Osmulski court, however, was not persuaded by the prior decisions, and there is now a conflict among the appellate districts. Unless this issue is resolved by the Florida Supreme Court or addressed by the legislature, the trial courts in the Second and Fourth Districts will be required to follow the decision issued by their respective district appellate court. Trial courts in the other three appellate districts can follow either of the conflicting decisions until their appellate districts issue a ruling.

The Osmulski court observed that in recent years, the use of digital video technology has significantly increased. The court noted that the video systems vary greatly in quality and methodology, in who controls the video and in how the video is preserved or erased. The court reasoned: “Given this myriad of uncertainties, it would not be fair to businesses or homeowners to require them to preserve video evidence in the absence of a written request to do so.” Thus, the court held that a “defendant has a duty to obtain and preserve a copy of any relevant information recorded by [a] camera if a written request to do so has been made by the injured party or their representative prior to the point at which the information is lost or destroyed in the normal course of the defendant’s video operations.” Finally, the court held that if OFW had a duty to preserve the evidence, the appropriate jury instruction would have been an adverse inference that the missing video was unfavorable to OFW, rather than a rebuttable presumption of negligence.