Recently, a client contacted us regarding an alleged automobile-pedestrian accident which occurred outside of a well-known resort in Florida. Plaintiff, an employee of the resort, brought a lawsuit against our client alleging, amongst other things, negligence. Specifically, Plaintiff claimed that he was pinned between the resort’s golf cart and our client’s vehicle. As a standard measure, we sent a preservation of evidence letter to the resort demanding preservation of surveillance and the golf cart. The resort responded that it had no duty to preserve any evidence.
Last month, in Pena v. Bi-Lo Holdings, LLC, a Florida appellate court reviewed a trial court’s decision, wherein it denied the plaintiff’s motion for an adverse inference jury instruction based upon the defendants’ alleged spoliation of evidence. 45 Fla. L.W. D506a (Fla. 3rd DCA 2020) Ultimately, the appellate court affirmed the trial court’s decision. At issue, was a broken bag of rice which plaintiff claimed to have slipped on spilled out grains on the floor of defendant’s supermarket. Prior to filing suit, plaintiff made a preservation demand for surveillance footage but not for the bag of rice. Although defendant failed to preserve the rice, the court found no spoliation.
“Spoliation [. . .] is a cause of action which holds someone liable for negligently or intentionally destroying material which is needed as evidence in litigation.” See Rockenbach, Spoliation of Evidence: A Double-Edged Sword, Fla. B.J., Nov. 2001, at 34. Although seemingly spelled out in its definition, spoliation has limits and restraints on its scope and applicability. In Pena v. Bi-Lo Holdings, LLC, the court analyzed the standard for assessing spoliation, which includes “[. . .] a three-part threshold inquiry: ‘1) whether the evidence existed at one time, 2) whether the spoliater had a duty to preserve the evidence, and 3) whether the evidence was critical to an opposing party being able to prove its prima facie case or a defense.’” Pena citing Golden Yachts, Inc. v. Hall, 920 So. 2d 777, 781 (Fla. 4th DCA 2006) [31 Fla. L.W. D494a] In review, the court found that 1) the bag of rice existed; 2) defendants had a duty, pursuant to established case law, to preserve all relevant evidence upon notice of potential litigation; and 3) the bag of rice was not critical to plaintiff’s ability to prove its case. Therefore, it found plaintiff’s claim for spoliation unsupported.
Nevertheless, the court entertained that even if plaintiff had established spoliation, she would have failed to establish any arguable right to an adverse inference. “‘[W]hen a party fails to preserve evidence in its custody [the appropriate sanction] depends on the willfulness or bad faith, if any, of the party responsible for the loss of the evidence, the extent of prejudice suffered by the other party or parties, and what is required to cure the prejudice.’” Id citing Sponco Mfg., Inc. v. Alcover, 656 So. 2d 629, 630 (Fla. 3d DC1995). The court found no willfulness or bad faith in defendants’ failure to preserve the bag of rice. Further, it found plaintiff was not prejudiced.
This case serves as a necessary reminder of the limits on the scope of a spoliation cause of action. Further, it outlines the burden a party must prove in order for a court to consider the serious award of an adverse jury instruction. In the case of the resort, it is clear that defendants’ preservation demand to the resort has established a duty for the resort to preserve all relevant evidence for the pending litigation. However, an award of an adverse inference later sought by the defendants will remain constrained by the burden of proving the three-part threshold and the appropriate sanctions standard set forth in Pena v. Bi-Lo Holdings, LLC.