IN THE SUPREME COURT OF FLORIDA

Transcription

1 IN THE SUPREME COURT OF FLORIDA AIMEE OSMULSKI, Petitioner, Case No.: SC vs. L.T. Case No.: 2D CI-11 OLDSMAR FINE WINE, INC., a/k/a LUEKENS BIG TOWN LIQUOR, INC., d/b/a LUEKEN LIQUOR, Respondent. ON REVIEW FROM THE DISTRICT COURT OF APPEAL SECOND DISTRICT OF FLORIDA JURISDICTIONAL BRIEF OF PETITIONER JUSTIN W. PIMENTA Florida Bar No ABRAHAMSON & UITERWYK 900 W. Platt Street Tampa, Florida Tel: (813) Fax: (813) CELENE H. HUMPHRIES Florida Bar: TRACY S. CARLIN Florida Bar: BRANNOCK & HUMPHRIES 100 South Ashley Drive, Suite 1130 Tampa, Florida Tel: (813) Fax: (813) Attorneys for Petitioner

2 TABLE OF CONTENTS Table of Authorities... iii Statement of the Case and Facts... 1 Summary of the Argument... 4 Argument... 5 Conclusion...10 Certificate of Service...11 Certificate of Compliance...11 ii

3 TABLE OF AUTHORITIES Cases Albertson's, Inc. v. Arriaga, 2004 Tex. App. LEXIS 8307 (Tex. App. 2004)... 7 Am. Hospitality Mgmt. Co. of Minnesota v. Hettiger, 904 So. 2d 547 (Fla. 4th DCA 2005)... 6 Bass-Davis v. Davis, 134 P.3d 103 (Nev. 2006)... 7 Cockerline v. Menendez, 988 A.2d 575 (N.J. Super. Ct. App. Div. 2010)... 7 Hagopian v. Publix Supermarkets, Inc., 788 So. 2d 1088 (Fla. 4th DCA 2001)... 6 Mathias v. Jacobs, 197 F.R.D. 29 (S.D.N.Y. 2000)... 7 Pennsylvania Lumberman's Mut. Ins. Co. v. Florida Power & Light Co., 724 So. 2d 629 (Fla. 3d DCA 1998)... 6 Remy v. Ford Motor Co., 2006 WL (V.I. Super. 2006)... 8 Silvestri v. Gen. Motors Corp., 271 F.3d 583 (4th Cir. 2001)... 7 Voom HD Holdings LLC v. EchoStar Satellite L.L.C., 93 A.D.3d 33 (N.Y. App. Div. 2012)...7, 9 iii

4 Other Authorities David A Bell, Margaret M. Koesel & Tracey L. Turnbull, Let s Level the Playing Field: A New Proposal for Analysis of Spoliation of Evidence Claims in Pending Litigation, 29 Ariz. St. L. J. 769 (1997)...10 Drew D. Dropkin, Linking the Culpability and Circumstantial Evidence Requirement for the Spoliation Inference, Duke Law J., April Margaret M. Koesel, et al., Spoliation of Evidence: Sanctions and Remedies for Destruction of Evidence in Civil Litigation (2000)...7, 8 Sam LaManna, Courts Take a Harder Line on Spoliation, Nat l L.J., July 26, iv

5 v

6 STATEMENT OF THE CASE AND FACTS This Court has jurisdiction to resolve an express and direct conflict between the Second and Fourth Districts regarding when a pre-suit duty to preserve evidence arises. The Fourth District has held that a duty arises whenever litigation is reasonably foreseeable. In contrast, the Second District held in this case that a duty does not arise until a written request to preserve the evidence is made. This conclusion places the Second District at odds, not only with the Fourth District, but also with the weight of authority developing around the country. This Court should resolve this conflict, which impacts every civil litigant in Florida and the fair administration of justice, as illustrated by the result in this case. By accepting this case, the Court will have an opportunity to establish a uniform rule for when a presuit duty to preserve evidence arises. Therefore, this Court should exercise its discretion in favor of taking this case and resolving it on the merits. This petition arises out of a premises liability suit filed by Petitioner, Aimee Osmulski, against Respondent, Oldsmar Fine Wine, Inc. ( OFW ). The action arose after Osmulski slipped and fell in OFW s store. (Appendix ( A )1) Osmulski said she slipped about two steps beyond OFW s front door mat when she entered the store because the mat was wet and OFW had not removed the water or posted any warnings regarding the wet floor. (A2, 4) In contrast, OFW claimed Osmulski fell either because she was running or because she drunk or on drugs. (A4) The 1

7 video surveillance evidence OFW destroyed would likely have resolved the dispute about the cause of Osmulski s fall. (See A4) Without that evidence, the jury found Osmulski sixty-five percent liable for her fall and OFW thirty-five percent liable. (A2) The trial court entered judgment in Osmulski s favor and she appealed. (A2) On appeal, Osmulski argued that the trial court erred when it denied her any remedy for OFW s destruction of the video evidence. (A2) The trial court had declined to grant Osmulski any relief for the alleged spoliation because it concluded that OFW had no duty to preserve the evidence where Osmulski had never asked OFW to do so. (A2) The facts showed, however, that within a week of her fall, Osmulski and OFW s insurance carrier communicated several times. (A2) During those communications, Osmulski told the carrier that she fell because of the wet floor and believed OFW was responsible for her resulting medical expenses, lost wages, and other damages. (A2-3) OFW s carrier advised Osmulski that it was investigating her claim, including whether OFW was liable to her. (A3) In the meantime, it asked her to send it any medical bills that were not covered by her insurance. (A3) When OFW s carrier did not settle her claim, Osmulski filed suit. Osmulski served OFW a request to produce any video recordings of the premises from the day of her fall. (A3) OFW responded that it did not have any such videos. (A3) 2

8 During his pre-trial deposition, however, OFW s principal testified that, to his knowledge, OFW s surveillance cameras were operational and would have recorded Osmulski s fall. (A3) He also testified that the surveillance system retains the recordings for sixty days, but that there was no standard procedure for storing them. (A3) OFW s principle conceded that he knew Osmulski had filed a claim with his insurance carrier related to her fall. (A3-4.) On further examination, he also admitted that he had recently been involved in a prior slip and fall suit and that he had watched the video of the fall in that case to see if the plaintiff had been running. (A4) He also had a history of preserving video surveillance evidence for the police when his store had been robbed in the past. (A3) Despite all this, he claimed he did not think this video should be saved because he never received a specific request to do so and because he claimed his insurance carrier told him Osmulski was only seeking payment of her medical expenses. (A3-4) Osmulski relied on these facts to argue that litigation was reasonably foreseeable and, therefore, OFW had a duty to preserve the video evidence. (A4, n.2) Osmulski sought a variety of remedies for OFW s destruction of that evidence. (A4-5) The trial court denied Osmulski any relief for the spoliation of the video recordings, however, because it concluded that OFW had no duty to preserve them in the absence of a written request to do so. (A6) 3

9 The Second District agreed with the trial court and held that, because of the nature of electronic video surveillance, OFW had no duty to preserve the video evidence in the absence of a written request. (A2-7) The Second District also stated in obiter dicta that, even if no written request was required, Osmulski was not entitled to a remedy because her lawsuit was not reasonably foreseeable when OFW destroyed the evidence. (A7-10) Thus, the court affirmed the judgment. Osmulski timely filed her notice to invoke the discretionary jurisdiction of this Court. SUMMARY OF THE ARGUMENT The Second and Fourth Districts expressly and directly conflict on the question of when a pre-suit duty to preserve evidence arises. Here, the Second District held that a party has no pre-suit duty to preserve electronic surveillance evidence, unless the opposing party has served a written request for the evidence to be preserved. In contrast, the Fourth District has held that a party has a general duty to preserve evidence whenever a lawsuit is reasonably foreseeable. The Fourth District s holding is consistent with a growing, nationwide trend of spoliation law holding that a pre-suit duty to preserve evidence arises whenever litigation is reasonably foreseeable. That holding should be adopted as the uniform rule in Florida. This is an important conflict that must be resolved. The conflict affects the rights of civil litigants throughout Florida. Therefore, a uniform rule 4

10 should exist. This issue also directly impacts important public policies concerning civil discovery and the fair administration of justice. As a result, this Court should take this case, resolve the conflict, establish a uniform rule, and resolve Osmulski s claims on their merits. ARGUMENT The Second District stated that before a court may provide any remedy for alleged spoliation of evidence, the court must determine whether the evidence ever existed, the spoliator had a duty to preserve the evidence, and the evidence was crucial to an opposing party s prima facie case or a defense. (A5-6) The court noted that the trial court refused to grant Osmulski a remedy because it concluded as a matter of law that Osmulski failed to show OFW had a duty to preserve the evidence in the absence of a written request to do so. (A6) The Second District agreed. (A6) In doing so, the Second District observed that the use of video surveillance technology has significantly increased. (A6) It stated that there are many uncertainties about this technology as it relates to the resolution of legal disputes, including variations in quality, methodology, possession, control, relevance, and destruction/retention policies. (A6-7) Given these uncertainties, the court concluded apparently on its own and without regard to the Fourth District s contrary holding or the nationwide trend that it would be unfair to businesses or homeowners to require them to preserve surveillance 5

11 evidence in the absence of a written request. (A7) Thus, the court held that if a defendant has knowledge of an accident on his property that may have been captured by electronic video surveillance technology, the defendant has no duty to preserve that evidence unless he receives a written request to do so before that evidence is lost or destroyed in the normal course of the defendant s video operations. (A7) In contrast, the Fourth District has held that, regardless of the type of evidence involved, a party has a duty to preserve potentially relevant evidence when litigation is reasonably foreseeable. See Am. Hospitality Mgmt. Co. of Minnesota v. Hettiger, 904 So. 2d 547, 549 (Fla. 4th DCA 2005) (citing Hagopian v. Publix Supermarkets, Inc., 788 So. 2d 1088, 1090 (Fla. 4th DCA 2001) (recognizing establishment s duty to preserve evidence even without a contractual, statutory, or administrative duty), rev. den., 817 So. 2d 849 (Fla. 2002); see also Penn. Lumberman s Mut. Ins. Co. v. Fla. Power & Light Co., 724 So. 2d 629, 630 (Fla. 3d DCA 1998) (notice of potential litigation triggers the duty to preserve evidence). No written demand is required in the Fourth District. Likewise, that court has not carved out any special rule for electronic surveillance evidence. See Hettiger, 904 So. 2d at 549. The Fourth District s holding is in line with a growing, nationwide trend in spoliation law. See Margaret M. Koesel, et al., Spoliation of Evidence: Sanctions 6

12 and Remedies for Destruction of Evidence in Civil Litigation (2000), pp. 7 n. 25 & 8, n (discussing the trend and citing Silvestri v. General Motors Corp., 271 F.3d 583, 590 (4th Cir. 2001) ( Spoliation refers to the destruction or material alteration of evidence or the failure to preserve property for another s use as evidence in reasonably foreseeable litigation. ); Mathias v. Jacobs, 197 F.R.D. 29, 37 (S.D. N.Y. 2000) ( duty to preserve arises when a party anticipates litigation ); Albertson s, Inc. v. Arriaga, 2004 Tex. App. LEXIS 8307 (Tex. App. 2004) (duty arises where defendant know or should know plaintiff my file a claim)); see also Voom HD Holdings LLC v. Echostart Satellite, LLC, 93 A.D.3d 33, 36, (N.Y. App. Div. 2012) ( Once a party reasonably anticipates litigation, it must suspend its routine document retention/destruction policy and put in place a litigation hold to ensure the preservation of relevant [evidence] (quotation omitted)); Cockerline v. Menendez, 988 A.2d 575, (N.J. Supr. Ct. App. Div. 2010) ( Such a duty [to preserve evidence] arises when there is pending or likely litigation between two parties, knowledge of this fact by the alleged spoliating party, evidence relevant to the litigation, and the foreseeability that the opposing party would be prejudiced by the destruction or disposal of this evidence. ); Bass-Davis v. Davis, 134 P.3d 103, 108 (Nev. 2006) (duty arises when litigation reasonably foreseeable); Remy v. Ford Motor Co., 2006 WL , *2 1 Relevant excerpts from this book have been filed with the Court separately as cited authority. 7

13 (V.I. Super. 2006) ( A party who has reason to anticipate litigation has an affirmative duty to preserve evidence which might be relevant to the issues in the lawsuit. (citations omitted)). Reasonable foreseeability is a relatively simple concept that has been easily applied in the personal injury context for many years. Where a person suffers serious injury on an owner s property and immediately makes a claim with the owner s insurance carrier, litigation is probably likely certainly likely enough that the owner should be compelled to save obviously relevant evidence. As Ms. Koesel states in the publication titled Spoliation of Evidence: Sanctions and Remedies for Destruction of Evidence in Civil Litigation: There is a straightforward rational for requiring parties to preserve relevant evidence before a lawsuit is filed: Absent such a pre-litigation duty, a party might be able to subvert the discovery process and the fair administration of justice by destroying evidence before a potential litigant files a claim. Koesel, p. 7. This is particularly true where, as here, video surveillance of the very event in question is at issue. The fact that it is electronic or digital surveillance evidence should increase rather than decrease a party s duty to preserve it where litigation is reasonably foreseeable. We are not talking about a warehouse full of potentially relevant documents, which can be expensive and burdensome to store. Rather, we are talking about a relatively small amount of electronic data that, in this modern age, 8

14 is relatively easy to copy and store. Also, the potential benefit of this type of evidence should outweigh any need to automatically delete it without a written demand. Here, the evidence could have directly refuted either Osmulski s or OFW s version of events. Given the importance of the information and the ease of its retention, it should have been preserved regardless of a written demand to do so. Also, to the extent that the Second District relied on the fact that the evidence was destroyed pursuant to an existing retention/destruction policy, this fact is meaningless in the inquiry of whether a duty to preserve the evidence exists. Spoliation remedies exist for the negligent and intentional destruction of evidence. That the evidence was destroyed pursuant to an existing policy is merely evidence that the destruction may have been negligent. It does not establish that no duty to preserve the evidence existed. In fact, such a holding could actually encourage businesses or homeowners to implement policies to destroy or overwrite electronic surveillance data every day or even every few hours. Because they control the evidence, they can retain it when it is favorable but allow it to be destroyed when it is not. Such a result would undermine the civil discovery process and the fair administration of justice. It would also buck the growing trend in the law that provides that a duty to preserve all species of evidence arises whenever litigation is reasonably foreseeable. See, e.g., Voom HD Holdings, 93 A.D.3d at 33 (requiring preservation of electronically stored information where litigation is reasonably 9

15 foreseeable). This trend has arisen precisely because of increased allegations of spoliation in civil litigation and the resulting need to have a clear, uniform test to determine when the duty to preserve evidence arises. 2 Consequently, the issues involved in this case are the very type of issues this Court can and should resolve to ensure that a uniform test is applied throughout the District Courts of Appeal in Florida. CONCLUSION This Court has discretionary jurisdiction to review the decision below. It should exercise that discretion in favor of accepting jurisdiction to allow it to consider the merits of Osmulski s arguments. JUSTIN W. PIMENTA Florida Bar No jpimenta@uiterwyklaw.com ABRAHAMSON & UITERWYK 900 W. Platt Street Tampa, Florida Tel: (813) Fax: (813) Secondary service@uiterwyklaw.com Attorneys for Petitioner CELENE H. HUMPHRIES Florida Bar: chumphries@bhappeals.com TRACY S. CARLIN Florida Bar: tcarlin@bhappeals.com BRANNOCK & HUMPHRIES 100 South Ashley Drive, Suite 1130 Tampa, Florida Tel: (813) Fax: (813) Secondary eservice@bhappeals.com 2 See Drew D. Dropkin, Linking the Culpability and Circumstantial Evidence Requirement for the Spoliation Inference, Duke Law J., April 2002, ; David A Bell, Margaret M. Koesel & Tracey L. Turnbull, Let s Level the Playing Field: A New Proposal for Analysis of Spoliation of Evidence Claims in Pending Litigation, 29 Ariz. St. L. J. 769, 790 (1997); Sam LaManna, Courts Take a Harder Line on Spoliation, Nat l L.J., July 26, 1993,

16 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of the foregoing has been furnished by to Scott A. Cole (scott.cole@csklegal.com) and Anne Sullivan (Anne.Sullivan@csklegal.com), Cole, Scott & Kissane, P.A., 9150 South Dadeland Blvd., 14 th Floor, Miami, Florida on this day of September CELENE H. HUMPHRIES Florida Bar: CERTIFICATE OF COMPLIANCE I HEREBY CERTIFY that this brief complies with the font requirements of Florida Rules of Appellate Procedure 9.210(a)(2). CELENE H. HUMPHRIES Florida Bar: