You Got Hurt? Let’s Check the Surveillance Footage

Surveillance footage can be effective evidence in personal injury cases, but LP should be aware of its pitfalls.

Loss Prevention Equipment, surveillance footage, ORC methods

Security surveillance footage provides value in many ways, including theft prevention, suspect identification, and as key evidence in defending against per¬sonal injury lawsuits.

Case in point: A Philadelphia County Court judge last summer cut a jury award nearly in half in the case of a woman who alleged she sustained a shoulder injury after tracking snow into a Giant Food store and slipping. “This was all on video, so all the best evidence was on video,” a member of the defense team told the Pennsylvania Record. The video revealed the woman fell on her buttocks, putting her shoulder injury claim into question, and also showed 22 other customers entering and walking the exact path as the plaintiff without incident. Although the video couldn’t clear the store completely of fault, it was likely a key reason the plaintiff walked away with only $39,000.

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“The recent advent of easily concealable, high-resolution digital video cameras has made covert surveillance in personal injury cases more popular and effective. A persuasive surveillance video may defeat the plaintiff’s claims of injury,” say Robert Rubin and Mark Stempler, both attorneys, in the Florida Bar Journal. Yves Robillard, a litigation lawyer and partner in the office of Miller Thomson, agrees, noting that, once admitted, security video is strong evidence—and is considered to be “direct evidence of what was seen to be happening at a particular place at a particular time.”

Legal experts note, however, that some challenging issues have arisen concerning discovery, authentication, use at trial, manipulation, and invasion of privacy. To minimize exposure and maximize protection in personal injury cases, there are key issues that loss prevention teams should consider.

Surveillance footage is most effective when used to impeach a plaintiff’s credibility as to the extent of his or her injuries. Since the tape is factual, not opinion, it is not subject to traditional credibility attacks, note Rubin and Stempler. They add that it’s also a good trial tool because it is easily understood by a jury, easily admissible, and often offers entertainment value.

You don’t have a legal duty to share surveillance footage with a customer who demands to see it, for example, to look at the condition of the floor in a slip and fall allegation. To obtain the video, the customer needs to sue the store. According to Florida personal injury law firm Glick & Grife, only during discovery are you obligated to hand over a copy of the video to the individual or their legal representation.

As a general rule, permanent store surveillance footage is considered non-work product and must be shared with a plaintiff upon receipt of a proper request during the discovery phase of a court case. But a covert investigator’s tape is generally considered work product, which if the defense does not intend to introduce at trial, is typically subject to protection. The Fourth District Court of Appeals recently confirmed the distinction between static, permanent store surveillance recordings and a covert investigator’s tape. The retailer Target was trying to avoid releasing footage from a store security camera, but the appeals court ruled that that the video was not work product prepared to aid counsel in trying the case; it was a static video of the accident itself, discoverable under the Rules of Civil Procedure, Target Corporation v. Vogel, 41 So. 3d 962; Fla. 4th DCA, 2010.

It is possible for an investigation of an injury claim to go too far and constitute an invasion of a plaintiff’s right to privacy. Investigators should not snoop around a plaintiff’s home, for example, or knock on a plaintiff’s door under false pretenses. But Rubin and Stempler say that for decades courts have held that a plaintiff must expect that a reasonable investigation will be made subsequent to the filing of a claim, including the videotaping of the plaintiff in public.

If there is no witness to authenticate surveillance footage, it can still provide key evidence in a lawsuit under the “silent witness” theory—but only if the security operation has records to offer showing the reliability of its video surveillance operation. Rubin and Stempler note that this requires a determination by a judge that: 1) there is evidence establishing the time and date of the video; 2) there was no tampering with the video; 3) the video equipment used was sound; and 4) there is testimony identifying the participants depicted in the video.

To help a surveillance program meet court scrutiny, organizations should—at the corporate level—annually conduct an operational review of all aspects of CCTV operation and management. The review should include CCTV operation, incident handling, video handling, maintenance of equipment, and spot audits of store CCTV systems. At the location level, stores can employ tactics such as setting the recording duration to coincide with working shifts to assist in vouching for the veracity of videotape evidence.

Teach loss prevention agents to be sensitive that video can sometimes distort actual events. For example, a security officer who places his or her hands on an unruly patron while escorting them may seem—in a video from far away—to be at fault if the individual trips and falls. Even appropriate handling can seem rough to a jury that wants to see it that way. With cameras omnipresent these days, it is best to encourage individuals to leave on their own without touching them, by asking “Will you please follow me to the exit?”, for example.

As in criminal cases, use of time-lapse video, as well as edited and enhanced videos, is generally admissible if they fairly and accurately represent what is depicted. If a plaintiff’s attorney claims a video is not an accurate representation of the original video, specific objections must be made and “the court may then have to compare the original to the allegedly ‘manipulated’ video for an authenticity analysis,” note Rubin and Stempler. A relationship with a reliable technical expert is critical to handle all the nuances of technology-based evidence, especially in the case of a digital recording where claims of tampering may be made more readily.

Effective surveillance footage can serve as the basis for a defense motion to dismiss a complaint for fraud, say Rubin and Stempler, but they add that dismissal for fraud requires a high standard. Such dismissal occurs “where it can be demonstrated, clearly and convincingly, that a party has sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system’s ability impartially to adjudicate a matter by improperly influencing the trier of fact or unfairly hampering the presentation of the opposing party’s claim or defense.”

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