Premise Liability & Video Surveillance

Marcotte Law Firm LLC — Mon, 14 Feb 2022 19:16:20 GMT

We have previously discussed a number of issues surrounding premises liability. For example, in the context of snow and ice, classifications of individuals on your property, and doctrines like attractive nuisance. We are now going to dive into some evidentiary issues that may arise in your claim, specifically in the context of surveillance video in a commercial setting. As the technology becomes cheaper and more readily available, more and more commercial property owners are investing in video surveillance systems. This is for a multitude of reasons. First and foremost, it helps with loss prevention (stealing). But, it also is a way for property owners or renters to have an eye in the sky to be able to record certain events. This includes many injuries. This is why we always suggest you assume that whenever you are in a commercial property, you are being watched. As you can imagine, the proliferation of surveillance cameras has significantly impacted premise liability law. More cameras means more evidence in many claims. Cameras are able to see someone when they fall. They also are able to create a timeline as to a person’s movements, or even look to see what caused the hazard that the person tripped on. As surveillance video evidence becomes the norm, so too do a host of related legal issues. Specially, issues of preservations of evidence including what is known as “spoliation.” Spoliation (not spoil-ation!) is defined as “the destruction or alteration of evidence resulting from a party’s failure to preserve evidence relevant to a litigation or investigation.” While this could refer to a deliberate and intentional destruction of video evidence, spoliation most commonly occurs when a defendant fails to preserve video evidence that they had notice may relate to a possible premise injury. This is why it is in the interest of any business to have written guidelines establishing the policy for retaining potentially relevant surveillance video. Upgrades in technology have digitized most surveillance video equipment; however, some businesses may still rely on video cassettes or discs. Regardless of the technology involved, there is still a finite ability to store video indefinitely, even digitally. Most systems will have an automated deletion program that will delete or overwrite videos after a given time. In the old days, a surveillance tape would be re-used, and the old footage destroyed. Now, though cloud storage is seemingly limitless, the cost to keep unnecessary surveilance footage is not in many companys’ budget. While the law does not require you to incur additional expenses to preserve all video indefinitely, a business is required to preserve surveillance video in anticipation of litigation. In Massachusetts, the duty to preserve evidence is straightforward. The duty arises when a reasonable person knows or should know that litigation is possible and that the evidence might be relevant. Commercial premises often receive notice of an accident, e.g., an ambulance arrives at their property, so claiming lack of notice will usually be difficult to prove. In order to show spoliation under Massachusetts law, you must show either a negligent or intentional destruction of evidence. Remedies are based on the degree of misconduct of the defendant. The most common remedy for spoliation is a jury instruction from the judge allowing jurors to draw an adverse inference, i.e., you can assume the defendant is hiding something harmful to their case, from the destruction of the evidence. The need to preserve potential evidence highlights the need to work with an attorney on any potential slip and fall claim. An experienced attorney will contact the defendant business to remind them of their duty to preserve any video surveillance evidence from the time of the claim. Not only does this remind the business of their duty, it also lays the foundation for any future spoliation issues, should they arise.

If you’ve been injured on someone’s else’s property, its important that you find a personal injury lawyer as soon as possible. The sooner you find a lawyer, the sooner he or she can send out a letter that asks that they preserve all videos. This will give you a much better chance of the video not magically disappearing.

Snow and Ice Injuries

Marcotte Law Firm LLC — Mon, 22 Feb 2021 21:05:32 GMT

In Part 1, we discussed the duty owed by property owners in terms of snow and ice removal. In this post, we will discuss what happens if you are injured after slipping on ice or snow. It is important to know what steps are available to you and what, if any, fault you may have in the matter. As noted in the previous post, it used to be much harder to recover damages from a slip and fall caused by snow and ice. A 2010 Supreme Judicial Court (“SJC”) case (Papadopoulos v. Target Corp) overturned an over-a-century-old law regarding the accumulation of snow. The duty placed on property owners was raised and it became easier to prove negligence. However, just because it became “easier,” does not mean collecting damages will be easy. There are still multiple factors at play. All slip and fall cases fall under a class of personal injury claims requiring you to prove negligence. You must establish a duty, a failure to meet that duty, injuries, and that the breach of duty caused those injuries. In a case of snow and ice-induced slip and fall case, the duty owed is by the landowner and he or she owes you “reasonable care” for a safe walking environment, that is, free of ice and snow. Further, you must suffer a significant injury, for example, sprained or broken bones or traumatic brain injury from hitting your head. Finally, you need to establish that the ice was the cause of your slip and fall. There are some additional nuances unique to ice and snow slip and falls that are important to know. Like most personal injury claims, slip and fall accidents have a three-year statute of limitations. However, for snow and ice slip and fall cases, the injured person must notify the property owner within thirty (30) days of their fall that you were injured on their property. This requirement serves two (2) functions. One is to give the property owner notice of a possible pending lawsuit. Next, it protects you from a property owner claiming they were not aware anyone was ever injured on their property. If you fail to provide this timely notice, you will be unable to file a claim. Another potential hurdle in your claim is the legal principle known as “comparative negligence.” Comparative negligence assesses a percentage of fault on both the injured party and the property owner, that is, you both share the blame. While the property owner is responsible for removing ice and snow, when walking on a slippery surface, you too have a duty to exercise reasonable care to avoid getting hurt. By way of example, assume you break your leg after slipping on ice in front of a restaurant. Lets further assume that the restaurant owners failed to “reasonably” de-ice the sidewalk. However, it was shown that you were walking and texting on your phone when you fell. While it is the restaurant owners’ “fault” for not removing the ice, the fact that you were not paying attention to where you were going can place some of the blame on you. In this instance, a court could find that while the restaurant owners’ were at fault, so too were you. Under comparative negligence, they can assign a percentage to you (you are 25% at fault) and the restaurant owners (they were 75% at fault). This means any damages you receive will be reduced by 25% (your percentage of fault). This is important to know, because under comparative negligence laws in Massachusetts, the plaintiff can only be compensated if their share of the blame is less than 51%. (A 2020 SJC case dealt, in part, with the issue of comparative negligence. You can read the full description of this case in a prior blog post here). As if this did not all seem daunting enough, oftentimes, and especially when businesses are responsible, insurance companies get involved. These cases are very fact-specific, and what constitutes “reasonable” snow and ice removal or treatment is often at issue. Therefore, insurance companies try to place blame on the accident victim for the fall. By now, it should be clear that there are a lot of moving parts when it comes to establishing your slip and fall case. It is in your best interest to work with an experienced personal injury attorney to help you navigate through this process.

Slip & Fall - Marcotte Law Firm

Premise Liability & Video Surveillance

Snow and Ice Injuries