Print Edition

  Email News Updates

Don’t Trash That Evidence

By Stephen S. Davie


If you are a home or business owner and someone is injured on your property, your gut reaction is probably to fix or remove the dangerous condition that caused the accident as soon as possible. An uneven brick paver or pothole that causes someone to trip and fall; a bottle of cleaning solution with a defective cap that spills on someone; a product display with a sharp edge that lacerates a customer. These are all conditions that you, the conscientious property owner, will try to remedy as quickly as possible. In doing so, however, you may unwittingly compromise your defense position if future litigation ensues.


A rule in law known as “spoliation of evidence” requires you to preserve evidence that is likely needed to prove a claim in the future. The failure to preserve evidence can result in a negative inference or even the complete waiver of a defense against the party destroying the evidence. In the past, this rule was limited to cases where a party violated an order specifically requiring evidence to be preserved, but in recent years the courts have expanded the rule to punish a party for even negligent destruction of evidence.


So what do you do to protect yourself? There is no universal answer to this question; each situation must be handled on a case-by-case basis. However, a couple basic guidelines may help your decision.


First, if the instrumentality causing the accident is something that can be preserved in the same condition, you should probably do so. In the examples cited above, the bottle with the defective cap can simply be stored in a sealed container with documentation identifying who handled the item. You can then consult with legal counsel about whether the item should continue to be preserved, or whether it can be discarded with certain safeguards such as photographing and testing.


If the condition causing the accident needs to be fixed in order to eliminate the risk of future accidents, for example leveling off an uneven sidewalk paver or filling in a pothole, the answer is a bit more difficult. The property owner is faced with the dilemma of choosing between the risk of another accident and/or being sanctioned for destroying evidence. In this case, the wisest course of action is probably to remediate the dangerous condition as soon as possible and document it as best you can to offset any future claim of spoliation.


One thing is for sure, the spoliation issue is being raised with increasing frequency in personal-injury cases. In the unfortunate event of an accident on your property, we recommend you contact [your] litigation attorneys for advice on how to respond.     


Stephen S. Davie is a partner at Mackenzie Hughes LLP in Syracuse. This Viewpoint article is drawn from the law firm’s Plain Talk Blog. Davie represents clients in all facets of civil personal injury litigation, including premises liability, medical malpractice, motor vehicle and public transportation liability, labor law/construction site liability and product liability actions. He is currently representing several corporations in numerous actions throughout New York state concerning injuries allegedly caused by exposure to asbestos. Contact Davie at (315) 233-8228 or email: 


Thank You For Visiting