In March 2019, a state appellate court issued a written opinion in a Georgia premises liability case discussing whether the lower court correctly limited the plaintiff’s closing argument by preventing her from arguing that the defendant grocery store destroyed video of the incident. Ultimately, the court concluded that the plaintiff’s closing argument was properly limited because she did not obtain an advance ruling on the issue.
The term spoliation refers to a party’s failure to preserve relevant evidence or a party’s destruction of evidence that it knows, or has reason to believe, will be relevant to an upcoming legal proceeding. If a court determines that a party spoliated evidence, there are a variety of possible sanctions, including an adverse inference instruction. An adverse inference instruction informs the jury that the spoliating party had an obligation to preserve evidence but failed to do so, and that the jurors may assume that had the evidence been presented, it would not have been favorable to the party that destroyed or failed to preserve it.
As explained in the appellate opinion, the plaintiff was shopping in the produce department at the defendant grocery store when a stack of boxes fell and crashed into her. The plaintiff was pushed into a display, and sustained a serious injury that worsened over time. The plaintiff later filed a premises liability lawsuit against the grocery store.
The plaintiff explained that, because her back was turned at the time of the incident, she could not see how the boxes were stacked and whether they contained any produce. However, the store manager testified that, when he arrived on the scene a few moments later, it seemed as though empty boxes struck the plaintiff. He explained that, had the boxes been full, he would have expected there to have been produce strewn about in the area, but that was not the case. The manager also testified that the store has a video surveillance system, but that the decision whether to preserve video of an incident rested with the District Manager.
Although the plaintiff did not raise the issue in a pre-trial motion, during closing argument, the plaintiff’s attorney attempted to argue that the video, had it been shown, would have been favorable to the plaintiff. The court prevented the plaintiff from making the argument, and eventually held the attorney in contempt for repeatedly referring to the “destroyed” evidence. Ultimately, the jury returned a defense verdict, and the plaintiff appealed.
On appeal, the plaintiff argued that the lower court improperly limited her closing argument. The court disagreed, noting that the question of whether a party spoliated evidence was a legal one that must be determined by a judge. Thus, by failing to raise the issue with the judge before closing arguments, the court concluded that the plaintiff missed the opportunity to obtain a legal ruling on the issue. That being the case, the plaintiff was properly prevented from arguing that the defendant spoliated evidence in her closing argument.
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