Segal McCambridge Shareholder Carla Varriale-Barker and Associate Marie-Victoire Wickers recently blocked a motion seeking an order striking Tiki Action Park, LLC’s answer or precluding it from presenting evidence due to alleged spoliation of evidence.
In Sparks v. Tiki Action Park, LLC, (Index Number 609800/2020, Supreme Court, Suffolk County), Plaintiffs commenced a negligence action arising out of personal injuries allegedly sustained by a minor child at Tiki Action Park, LLC’s amusement park. Plaintiffs asserted that all video footage of Plaintiffs’ family on the date of the alleged accident should have been preserved, reasoning that the footage depicting Plaintiff’s interaction with the amusement park staff, getting buckled into their go-karts, and the post-accident equipment and investigations, among other things was material and relevant to prosecuting their action against Tiki Action Park, LLC. Plaintiffs complained that it was incumbent on Tiki Action Park, LLC’s owner to save all of the footage and not to discard selected portions of it.
Tiki Action Park, LLC’s owner testified, however, that there were six or seven motion-activated cameras that covered the track and that he monitored them often. The system in place at the time of the alleged accident held the video of the track area for ten to twenty days and the front desk area for three to four months. He testified that after the alleged accident, he backed up what he thought was relevant to the accident. Tiki Action Park, LLC’s owner also testified to the post-accident investigation that was conducted and the information that was exchanged in discovery. He also produced video of the alleged accident as it occurred. He noted at his deposition that he heard nothing about the alleged accident until three years later, when he was served with a Summons and Complaint. He averred it was unreasonable to expect that all of the footage, from every aspect of Plaintiff’s visit to the amusement park, should have been preserved. In fact, the videos were not requested until more than five years after the alleged accident.
The Supreme Court, Suffolk County agreed. Justice Vincent J. Martorana held it was “unclear” how the missing footage impacted Plaintiffs’ ability to sustain their burden of proof. This included Plaintiffs’ claims regarding the absence of seat belts, or additional video of Tiki Action Park, LLC’s employees’ inspection of the subject go-kart after the alleged accident. There was documentary evidence regarding safety inspections and Tiki Action Park, LLC’s owner provided detailed testimony at depositions.
Under the doctrine of spoliation, a party who negligently loses or intentionally destroys key evidence may be sanctioned. The party requesting the sanctions, however, bears the burden of demonstrating that a litigant intentionally or negligently disposed of critical evidence. This means that the party requesting spoliation sanctions must show that the party having control over the evidence possessed an obligation to preserve it at the time of destruction and that the evidence was destroyed with a “culpable state of mind” and that the destroyed evidence was relevant to the party’s claim or defense such that the trier of fact could find that the destroyed evidence would support that claim or defense. That was not the case here.
Furthermore, the Court observed that evidence that is willfully or intentionally destroyed will be presumed relevant, whereas where evidence is negligently destroyed, the party seeking the spoliation sanction must prove the destroyed evidence was relevant to the party’s claim or defense.
Moreover, the severity of the sanction depends on several factors, including but not limited to the knowledge and intent of the spoliator, the existence if proof of an explanation for the loss of evidence, and the degree of prejudice to the opposing party. Relief for spoliation may include preclusion of evidence, requiring payment of costs associated with replacement evidence, or an adverse inference at trial. Striking of a pleading may be warranted where destruction of evidence effectively deprives the adverse party of the ability to defend or prosecute its claim.
In Sparks, Plaintiffs failed to establish that Tiki Action Park, LLC intentionally spoliated evidence or that their ability to prove their claim was somehow compromised by Tiki Action Park, LLC. There was no evidence, for example, that Tiki Action Park, LLC had a culpable state of mind when it failed to back up all of the video footage or that Plaintiffs were deprived of the means to establish their case.
Carla Varriale-Barker and Marie-Victoire Wickers represented Tiki Action Park, LLC.