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Bilesky v. Shopko – Sanctions for Spoliation of Evidence

In some personal injury actions, parties involved may come to find certain pieces of key evidence were destroyed, altered or simply lost. This is referred to as “spoliation of evidence,” and because it can have such a profound impact on one side’s ability to prove its case, courts tend to respond rather harshly – regardless of whether the action was intentional.

In Florida, courts have consistently held sanctions for spoliation are appropriate. Courts will weigh the importance of the evidence, the impact on the aggrieved party and the intention of the party responsible. Possible sanctions include:

  • Exclusion of expert testimony
  • Imposition of evidentiary presumption
  • Dismissal of a claim
  • Default judgment on the issue of liability

Any one of these sanctions could literally make a break a case.

Our Hollywood injury lawyers understand one such case of alleged spoliation was dealt with recently by the Montana Supreme Court. In Bilesky v. Shopko, the court was tasked with weighing whether certain arguments were improperly admitted following the spoliation of video footage evidence in a slip-and-fall case.

According to court records, the case began when a woman suffered a slip-and-fall in a department store in 2011. She left the store without reporting the incident, but did call the next day and speak with the manager about what happened.

The manager then conferred with the store’s security guard, who reviewed video surveillance footage to review the incident. Footage of the fall was located, showing the woman indeed slipped and fell and her pants were wet when she stood up, indicating a transitive foreign substance on the floor.

The manager instructed the guard to copy the footage and send it to the store’s insurance claims adjuster.

Later, the woman filed a lawsuit against the store for recovery of damages related to her injuries. Her attorney sought a copy of the video from the incident. However, that request was ignored. It was later revealed the security guard copied the wrong footage. The relevant recording had been destroyed.

Her attorney then filed a motion for sanctions, arguing the video was a key piece of objective evidence that would have shown a number of important facts. Those facts included there was no maintenance on the floor for an extended time, there were no wet floor caution signs, the carpets were saturated with water, the woman’s pants were visibly wet, that she fell forward hard and landed on her hands and knees, that she required help getting up, that her gait was altered and that she was visibly in pain.

Plaintiff attorney requested a default judgment or negative inference jury instruction precluding the store from raising comparative negligence as a defense. Defendant lawyer said it would concede to several points plaintiff asserted the video would have shown, including the plaintiff’s wet pants, her needing help to get up and her altered gait. Defendant still disputed the other points.

Plaintiff wanted the points defendant conceded to be issued as judicial admissions to the jury. Trial court declined to do so. Later, the court allowed defendant to make statements that contradicted these earlier concessions.

Plaintiff later appealed, and the state supreme court reversed the trial court’s finding in favor of defense and remanded the case for a new trial. The state high court found trial court abused its discretion in allowing the contradictory statements to be made and in denying the judicial admissions as sanctions for spoliation of evidence.

Call Freeman Injury Law — 1-800-561-7777 for a free appointment to discuss your rights.

Additional Resources:

Bilesky v. Shopko, Nov. 14, 2014, Montana Supreme Court

More Blog Entries:

Boston Scientific to Pay $27M in Federal Vaginal Mesh Trial in Florida, Nov. 25, 2014, Hollywood Injury Lawyer Blog


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