What Can be Done About Lost or Destroyed Evidence?

In many personal injury cases, a negligent defendant will be in possession of crucial evidence, often for a long period of time before it has to be turned over. This may include a product that allegedly malfunctioned, witness reports, or photos of an accident scene.

You may wonder what is to prevent a defendant, who knows he was negligent, and knows that a lawsuit may be coming, from simply “losing” or destroying crucial evidence? And if it happens, how does an injured plaintiff prove their claim?

Spoliation of Evidence

Florida law has such a term for the loss or destruction of evidence. It’s called “spoliation” of evidence.

To show that a defendant has lost crucial evidence for a spoliation claim, a plaintiff must show:

  • The plaintiff had the right to sue;
  • The defendant has legal or contractual duty to preserve evidence;
  • Evidence was destroyed;
  • Impairment in the ability to prove the lawsuit;
  • That the destruction of the evidence made the plaintiff unable to prove the lawsuit; and
  • Damages resulted.

By far the toughest prong is the second. In some cases, a statute or ordinance may contain such a duty. In others, a contract, either between the defendant and the plaintiff, or the defendant and another party (such as a store owner and a security company), may contain the duty.

But in a typical slip and fall on someone’s premises, does a business owner have a legal or contractual duty to preserve evidence, just because it knows that a lawsuit may be filed? Often, that answer is no.

Jury Instructions and Other Sanctions

Thankfully, even if all the prongs are not specifically met, a jury instruction can be given to remedy any lost or destroyed evidence, or sanctions can be imposed.

For example, if through the discovery process it is revealed that a security tape was purposely destroyed, the court can sanction a party by striking its defenses—in effect, providing a judgment to the plaintiff.

Another remedy is often a jury instruction as to presumptions. Usually at the conclusion of a case, a judge will tell a jury that they are to assume that missing evidence would have demonstrated negligence. For example, if a videotape showing a fall were destroyed, the judge may instruct the jury to assume that the tape would show a dangerous condition, or that it would otherwise corroborate the plaintiff’s testimony.

These instructions are very powerful for a jury—so powerful, it is often a better option for defendants to provide evidence than to destroy it, and risk a damaging jury instruction.

To get any of these sanctions however, it usually will have to be shown that evidence was purposely destroyed or lost or that it is being purposely withheld. That can be a high burden, but with proper depositions and reviewing of documents, it’s possible to show that an item that is that usually preserved by a defendant was wrongfully destroyed.

Often the most crucial evidence in proving a claim is the most difficult to obtain. Make sure you have attorneys that will fight to get all of the evidence. Talk to the Miami personal injury attorneys at Gerson & Schwartz, P.A. today for a free consultation about your injury case.


Contact Information