Courts across the country have long held that the obligations of an owner or manager of a commercial property that is open to customers include a duty to ensure the customer’s safety, while they are on the premises.  Similar duties exist in every state that require commercial vehicle owners to ensure those vehicles are maintained and operated properly so they do not present a danger to other motorists.

Invariably, accidents do happen and when they do, state laws allow a window of time for an injured person to bring a potential lawsuit.  That window of time is called the “statue of limitations” and its length varies from state to state.  The shortest state statute of limitations in the country is two years, but the longest is six years.  Since years may pass between an accident and a claim, what is done at the time of an accident and the information that is saved will have a potentially important effect on the outcome of any future litigation.

In those situations where multiple years pass between an accident and a claim, one of the most common issues raised by the injured person’s attorney is called a claim of “spoliation of evidence.”  Spoliation of evidence refers to the destruction, alteration, or failure to preserve evidence that is relevant to a legal case. Spoliation of evidence can happen in a variety of ways, such as failing to keep video surveillance that captured an alleged slip/trip and fall, or permitting a vehicle involved in an accident to be repaired or demolished, or even the failure to preserve a product, including something perishable, that is alleged to be defective.

The laws on spoliation of evidence vary from state to state, but in general, the three elements of a spoliation of evidence claim are: (1) awareness that a potential lawsuit or claim could be made at the time the evidence was lost or destroyed; (2) failure to preserve or destruction of evidence that impairs the ability to prove a party’s cause or defense; and (3) a causal relationship between the evidence destruction and the inability to prove the lawsuit or defense.

In situations when spoliation of evidence does happen, Courts are then permitted to invoke significant penalties against the side that did not preserve available evidence.  Those penalties include striking of defenses or the Court giving an instruction to a jury that they should assume the evidence that was not saved would hurt the party that did not save it.  All such penalties can seriously impair the ability to defend a claim.

With the ability to prevail in a future claim at stake, “saving the day” or taking steps to save or preserve accident evidence, at the time the accident happens, should be part of every accident response plan.

Certainly, the natural first concern when an accident happens is for the well-being of those involved.  A second consideration should then be to take steps to preserve accident evidence.  Once necessary care has been secured for a potentially injured person, the next step should be to contact the claims department of your insurance provider to initiate an accident response plan.  Claim professionals have specialized training and resources available to assist in preserving accident evidence and ensure that no valid spoliation of evidence claim can be made in the future.

A claim professional may assign an accident investigator or may also direct that steps be taken to ensure evidence is retained.  Those steps may include the following:

  • Take photographs and/or measurements of the area where the incident occurred.
  • Retain any applicable maintenance or inspection schedules and/or checklists.
  • If an alleged product failure, it is ideal to preserve the product. However, if that is not possible, take photographs of the product.
  • If the incident involves a motor vehicle collision, do not use, repair or demolish the vehicle until the vehicle can be inspected.
  • If the incident occurs on your premises and you have surveillance cameras, ensure that all surveillance (inside and outside) within one hour before the incident and one hour after the incident is preserved.
  • If an employee is involved, be sure to maintain their full employment file even if they are terminated or eventually leave employment voluntarily.
  • If drug or alcohol testing is performed on an employee after the incident, retain a copy of the results.

By their very nature, accidents are unplanned and unexpected events, and no two accidents are exactly the same.  Therefore, no “one size fits all” answer to preventing a spoliation of evidence claim exists.  But being proactive and involving claim department professionals early, when the evidence unique to each accident is still available, is the key to “saving the day” and supporting a successful defense in the future.


Kory J. Ickler
Laura H. Compton