The availability of evidence in a Georgia personal injury case can often make or break a lawsuit, especially when a party is acting in reliance on the opposition for certain information pertinent to the case. Unfortunately, bad actors will occasionally engage in the “spoliation of the evidence,” which can often have significant consequences in the course of a lawsuit.
In Georgia, “spoliation of evidence” can arise in many settings. According to Georgia law, spoliation involves “the destruction or failure to preserve evidence that is necessary to contemplated or pending litigation.” This could mean that an individual purposely destroyed or chose not to preserve necessary evidence – common examples are intentionally getting rid of camera footage or destroying paperwork. In addition, the evidence in question must be necessary and serve a central purpose in the case. A spoliation of the evidence claim can only prevail if the individual in control of the evidence is aware that there is or could be a lawsuit. As long as a claim is “reasonably foreseeable,” then they are responsible for saving relevant documents and materials.
In a recent Georgia Court of Appeals decision, a couple sued a restaurant entity for negligence after their minor son was injured on an outdoor restaurant playground at one of the restaurant’s franchise locations. While waiting on a table, the children played on the outdoor playground. It was a sunny, 80- to 90-degree day, and one of the plaintiffs concluded that the floor was “pretty warm, but no big deal.” Soon after, he discovered that the bottom of his 19-month-old son’s feet were badly burned. His son was subsequently taken to a local emergency room for treatment.
In the course of discovery, the plaintiffs retained an expert in biochemistry to testify that the chemical cleaner used on the playground equipment could cause burns when used inappropriately. The trial court excluded the testimony, finding that it was speculative and unreliable. The plaintiffs responded by filing a motion for spoliation sanctions. At the trial’s conclusion, the lower court denied the plaintiffs motion for spoliation sanctions and ruled in favor of the defendant.
On appeal, the plaintiffs argued that the defendant failed to preserve physical evidence of the sanitizer used on the playground on the day of the accident. The plaintiffs also claimed that this failure to maintain the evidence prevented them from examining the sanitizer solution and conducting necessary tests. However, the court disagreed and rejected the claim, siding with the defendant. Based on the evidence, the defendant had used up the 2.5-gallon sanitizer batch in the time between the incident and notice of potential litigation, at which point a new batch was necessary. As a result, there was nothing available for preservation by the time the defendant was put on notice of a potential lawsuit.
In Georgia, an individual or party that engages in spoliation may be subject to sanctions. However, these sanctions are only appropriate if the party that was responsible for keeping evidence was actually under a duty to preserve the evidence. The duty only arises when the defendant “knows or reasonably should know that the plaintiff is contemplating litigation.” Because premises liability claims involving spoliation of evidence can often be complicated to navigate, potential plaintiffs are advised to contact an experienced attorney to help them pursue the compensation they deserve.
Have You Been Injured in a Georgia Slip and Fall Accident?
If you or someone you know has been recently injured in a Georgia slip and fall accident, contact the attorneys at McAleer Law. Our team of experienced attorneys will advocate tirelessly on your behalf to help you and your loved ones pursue the compensation you deserve. To schedule a free consultation today, call 404-622-5337.