Premises Security Experts, Inc.
|Posted on December 8, 2021 at 2:30 PM|
Uncovering Spoliation of Evidence
Andrew P. Sutor
To obtain even a modicum of justice for injured clients, litigating attorneys often must seek out the truth. Too often, however, the truth is often concealed and very difficult to prove because of the practice of “spoliation of evidence.” Spoliation of evidence is widespread, particularly in negligent security cases.
Several decades ago I was the commander of the Accident Investigation Division of a major U.S. city’s police department. Among our duties was the investigation and documentation of police vehicular accidents. With approximately 2,200 crashes every year in a fleet of 1,600 police vehicles, we were kept quite busy. Accident scenes were processed accurately and honestly resulting in comprehensive reports to help determine preventability and accountability. The Police Accident Review Board would consider the facts and evidence contained in reports and then mandate appropriate remedial action. If extra driver training did not work, more severe sanctions were applied. Repeat offenders would find themselves suspended, walking a beat in subway or airport concourses, or even fired. The accurate accident reports were forwarded to the City Solicitor’s Office for settlement. Cover-ups and spoliation of evidence were unheard of at that time.
In the private sector, however, things are very different. Consider what happens if an elderly lady falls down the concrete stairs in a casino hotel parking garage and suffers serious injuries. A trained and highly-experienced in-house investigator documents the case and photographs the icy steps which were the proximate cause of the accident. The Director of Security gets called into the front office and is questioned: “Why are you establishing liability for our company?”
That is spoliation at work. The pressure for profits provides a powerful incentive for some owners and operators to look the other way in negligent security cases.
According to the courts, ”Spoliation of evidence in a prospective civil action occurs when evidence pertinent to the action is destroyed, thereby interfering with the action’s proper administration and disposition.” (Aetna Life and Cas. Co. v. Imet Mason Contractors 309 N.J. Super. 358, 368 (App. Div. 1998))
Spoliation of evidence relevant to litigation takes many forms including, but not limited to, discarding evidence that would be prejudicial, “missing” or “lost” reports, deleting e-mails, crashing computer hard drives, misclassification, and downgrading the seriousness of incidents in internal reports, destruction of security camera video clips, making fact witnesses unavailable to opposing counsel, and failure to obtain third-party witnesses to the event.
When you include the practice of “willful ignorance” with this behavior, which is part and parcel of ignoring foreseeable risk, you can come away with a sense of the immensity of the task before you to ensure that the truth of the matter is revealed and that justice for your client prevails.
Although courts and juries take a somewhat “dim view” of spoliation of evidence, it is challenging to prove. Interested parties require the services of experienced security professionals who are experts in uncovering spoliation and finding the truth. That includes the employment of and utilization of trained and experienced former law enforcement officials, investigators, and detectives who “know where the bodies are buried.” In this day and age of advanced technology, your expert must also have access to associates who are specialists in security, surveillance, and forensic information technology.
To bring a premises liability/negligent security case to a proper and successful conclusion, plaintiffs’ attorneys need to establish the truth of the matter, the actual level, and the foreseeability of risk present in cases at the time and place of their occurrence. Only then would your expert be able to accurately opine on the reasonableness of the security provided in the face of that risk.
The uncovering of spoliation of evidence allows the security expert to provide you with a stronger opinion in considering the actual totality of the circumstances in determining the level of negligence and the proximate cause of your client’s injury. It could also result in an adverse inference against the party responsible for the spoliation and possibly add to punitive damages.
Andrew P. Sutor is a Principal at Sutor & Associates, LLC, which provides professional security consultant and expert witness services for law firms and attorneys pursuing premises liability and negligent security cases. He can be reached at [email protected] or 609.822.2626