Scott Cole and Anne Sullivan of Cole, Scott & Kissane’s Appellate Group successfully defended an appeal involving a trip-and-fall accident where the main issue raised was an alleged spoliation of evidence. The plaintiff contended that the trial court erred in denying her requested Jury Instruction seeking a rebuttable presumption of negligence because video evidence of the incident was automatically deleted from the store’s surveillance cameras, and was therefore not available to be discovered. The trial court did not give the requested instruction, and found that there was no spoliation because the plaintiff had not asked the defendant store to preserve the video at any point prior to its destruction (all requests to preserve post-dated the routine destruction/recycling of the tape).
On appeal, the Second District Court of Appeal affirmed. It also further held that, if the defendant liquor store had a duty to preserve the evidence, the appropriate spoliation instruction would have been an adverse inference instruction, not the rebuttable presumption of negligence instruction sought by the plaintiff. In so holding, the court noted that a rebuttable presumption is stronger than an inference.
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