Victor M. Metsch in Legal/Financial on February 15, 2018
Surveillance cameras are a valued tool for keeping co-op and condo residents safe. They also have a dangerous side – when their footage is needed as evidence following a crime or accident on the property. Boards need to understand that they have legal obligations – and that they’re open to liability – in such situations.
When a board learns that someone has slipped on ice and fallen on the property, sustaining personal injury, it should immediately do three things. First, notify the managing agent; second, have the agent put the building’s liability insurance carrier on notice; and third, implement a so-called "litigation hold" with respect to all surveillance videos in, on, or around the premises.
A litigation hold is part of the duty to preserve physical evidence that might be relevant to a claim. And the duty to preserve such evidence, including videotapes, arises at the moment a potential defendant learns of a possible claim – often long before litigation is actually commenced. The mere occurrence of an accident or incident triggers the board’s duty to preserve evidence.
Once a board anticipates litigation, it must move to preserve surveillance footage by suspending any policies to delete it. Altering evidence or failing to preserve it, either deliberately or through negligence, is called “spoliation.” The courts have the power to impose sanctions for failure to preserve evidence that’s relevant to a party’s claim or defense. If the spoliation is the result of negligence, the sanction is called an “adverse inference charge” – an instruction that the jury can adopt the plaintiff’s interpretation of what the missing evidence would have shown. And if the spoliation was deliberate, the court can strike down the defendant’s pleading, a legal death knell.
When the evidence is negligently destroyed, the party seeking sanctions must prove that the evidence was relevant to a claim or defense. When the evidence is deliberately destroyed, the relevancy of the evidence is presumed.
Boards need to be aware that spoliation’s consequences extend beyond surveillance video footage. In a recent case, the plaintiff alleged that due to the defendant’s negligence, he sustained serious injuries when a defective basement step collapsed. The attorney for the injured person requested a site inspection, only to learn that the staircase had been removed and destroyed without notice. The court found that the building owner had control over the evidence and, therefore, was obligated to provide the plaintiff’s attorney with prior notice of the intention to repair or remove the staircase. The court found that the owner willfully and deceptively destroyed material evidence needed for litigation. Accordingly, the court imposed the sanction of an adverse inference instruction to the jury, in the plaintiff’s favor.
Lesson learned: where an accident or incident occurs that simply may lead to a claim, dispute or litigation, surveillance videos and other electronic or physical evidence that may bear upon or relate to the facts or circumstances of the matter must be preserved. The building superintendent, staff, and managing agent must promptly be instructed in writing to do so. Otherwise, your security cameras could put you in serious legal peril.
Victor M. Metsch is of counsel at the law firm of Smith, Gambrell & Russell.
Co-op and condo board business broken down into bite-sized bits - 2 stories each week. Read now on all digital devices.
A free digital resource for co-op/condo board directors. Published twice a month. Read now on all digital devices.