The dangerous side of security cameras
Habitat Magazine
By Victor M. Metsch
15 February 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, it 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 will put you in
serious legal peril.
Victor M. Metsch is of counsel at Smith, Gambrell & Russell.
top contents chapter previous next