Knowledge of Trip and Fall may not Support Sanctions/Constitute Notice of Potential Litigation

Following review of the grant of a motion for spoliation sanctions, the Court of Appeals found that the trial court abused its discretion in finding that Creek House Seafood & Grill, LLC (“Creek House”) failed to preserve video evidence of a customer’s fall. Creek House Seafood & Grill, LLC v. Provatas, A20A1631, 2021 WL 837083, at *1 (Ga. Ct. App. Mar. 5, 2021). The Court also found that the penalty imposed by the trial court was too harsh.


In early 2017, Creek House began operations and was visited by Joyce Provatas, Michael Provatas, and their grandchildren. The booth they sat in required a step up to enter. When Mr. Provatas attempted to enter the booth, he slipped on the step and fell backwards onto the floor. The party ordered food and finished their meal, and when it was time to leave, Mr. Provatas asked the employees of Creek House to help him exit the booth. Ultimately, an ambulance was called and took Mr. Provatas to the hospital. He did not recover his ability to walk and died approximately two months after the fall.


At the time of the fall, Creek House had a video surveillance system which the previous owner had installed and programmed. It appeared to be working, but the Creek House employees did not use the system and did not know the password to access the recordings. Nine days after the fall, Creek House received a preservation letter to preserve video recordings of the accident. After receiving the letter, the manager attempted to access the recordings, but he did not have the password. He contacted the former owners and an IT company in an attempt to access the recordings, but they were unsuccessful.


During litigation, Creek House sent the recorder to an expert who was able to access some of the recordings on the system. However, the recordings were primarily from November 2017. The expert opined that the system recorded on a week-to-week basis and would overwrite recordings on a six or seven day loop. While the expert testified that it was “possible” to recover overwritten recordings, and that he had done similar work in the past, he could not state with certainty whether it could be done in this case.


The appeals court found that assuming such footage did exist, Creek House did not have a duty to preserve the footage as it did not have actual or constructive knowledge of a lawsuit at the time the footage was overwritten. The court of appeals found that Creek House did not have actual notice of impending litigation until nine days after the fall. By that time, any footage of the fall had been overwritten. Thus, Creek House was not on notice regarding potential litigation at the time the evidence was destroyed. The expert’s testimony that it was “possible” to recover overwritten recordings was too speculative to support the trial court's spoliation order.


The Georgia Court of Appeals also pointed out that the sanction that a jury instruction allowing for an adverse inference, is typically only “reserved for ‘exceptional cases,’ generally only those in which the party lost or destroyed material evidence intentionally in bad faith and thereby prejudiced the opposing party in an incurable way.” However, “[t]he loss of relevant evidence due to mere negligence normally should result in lesser sanctions, if any at all.” That is because “[i]nformation lost through negligence may have been favorable to either party, including the party that lost it, and inferring that it was unfavorable to that party may tip the balance at trial in ways the lost information never would have.” Accordingly, the court of appeals reversed the grant of the motion for sanctions.

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