In Pearce v. Home Depot U.S.A., Inc., No. 14 CIV. 6836, 2016 WL 4540832 (S.D.N.Y. Aug. 30, 2016), the court denied defendant’s summary judgment motion on plaintiff’s personal injury / slip-and-fall claim. In sum, plaintiff claimed that they were injured when they slipped on a wet substance while in defendant’s store.
As explained by the court, this was due to the defendant’s destruction of an important piece of evidence:
[T]he Court cannot determine whether the liquid Plaintiff slipped on even existed –– and if so for how long –– because Defendant destroyed key evidence for this case. First, a factual conflict exists with respect to the condition of the floor. Two witnesses testified the floor was wet, three testified that the floor was dry. The condition of the floor in the video and the length of time it was wet is in dispute and remains a contested issue of material fact that must be determined at trial.
Viewing the facts in the light most favorable to the nonmoving party, there was wetness on the floor of the store where Plaintiff tripped. Assuming the floor was wet, the Court must determine if the wetness was on the floor for long enough to constitute constructive notice under New York law. Adamsby testified that it was customary for the Zamboni to clean the floor prior to 6 a.m. and the Plaintiff and Vasquez testified that the floor was wet, which creates a factual issue as to how long the floor was wet (if at all) after the Zamboni cleaned the floor between 6 a.m. and Plaintiff’s accident.
However, the failure of the Defendant to preserve the video before and after the accident makes it impossible to know how long the wetness was on the floor and if the condition was even created by the Zamboni. Defendant had a security video of the area where Plaintiff slipped and fell, but only preserved 23 seconds of the video instead of the full video from that day or any reasonable amount of footage that would enable Plaintiff and the Court to determine if Defendant had constructive notice.
New York courts have broad discretion to provide proportionate relief to the party deprived of the lost evidence including that courts may impose an adverse inference instruction against the party that destroyed evidence. In this case, Defendant destroyed a part of the video that prevented the plaintiff from obtaining evidence from which a trier of fact may have been able to reasonably infer that Defendant had constructive notice about the wet condition of the floor based on how long it existed before her accident. [T]his motion for summary judgment is denied because as a result of Defendant’s destruction of evidence the Court draws the inference that the wetness was on the floor existed for a sufficient amount of time to constitute constructive notice.