Indiana Court of Appeals Finds Hospital Spoliated Video Evidence in Premise Liability Case

The Indiana Court of Appeals recently found a hospital spoliated video camera evidence in a premise liability trip-and-fall personal injury case. In Rosen v. Cmty. Healthcare Sys., Caryl Rosen (Rosen) went to Community Hospital in Munster, Indiana to pick up her husband. As she was leaving the hospital, she tripped and fell over a floor mat in the hospital’s main lobby entrance. Rosen’s husband was not with her, and no hospital employees witnessed the fall. 

After the fall, a hospital security guard found Rosen lying face down on the floor mat. Rosen said she tripped over the floor mat. However, according to the security guard, the floor mat was flat and not disheveled or flipped up in any way. The next day, after receiving the security guard’s incident report, a hospital security supervisor viewed video footage from three cameras in or near the hospital’s main entrance lobby. Of the three hospital cameras, the supervisor only preserved 10-12 seconds of footage from one of the cameras, which was near a security desk pointing towards the entrance approximately 75 feet or more away from the entrance. While the preserved video showed Rosen’s fall, the portion of the floor mat over which Rosen fell was obscured by a wheelchair. According to the supervisor, the other two cameras did not show Rosen’s fall. As part of the hospital’s camera system, video footage not specifically saved was erased within 45-60 days.

Rosen filed a lawsuit against the hospital for injuries sustained in the fall. Prior to filing the lawsuit, Rosen obtained the preserved video from the hospital. After filing the lawsuit, Rosen learned about the other two video cameras. During litigation, Rosen filed a motion for sanctions for the hospital’s alleged spoliation of evidence. The trial court denied Rosen’s motion, finding the hospital did not engage in spoliation of evidence. At trial Rosen made an offer of proof regarding the hospital’s alleged spoliation of evidence and sought a jury instruction on spoliation of evidence, which the trial court refused to give. The jury returned a verdict in favor of the hospital and Rosen appealed. 

Under Indiana law, spoliation of evidence involves the negligent or intentional destruction, mutilation, alteration, or concealment of evidence. Anyone who anticipates being a party or is a party to a lawsuit has a duty to preserve what they know, or reasonably should know, is relevant to the action, reasonably calculated to lead to the discovery of admissible evidence, reasonably likely to be requested during discovery, and/or the subject of a pending discovery request. The duty to preserve relevant evidence can arise prior to a lawsuit being filed when a party knows, or should know, that litigation is possible and exists regardless of any request for preservation. A party making a claim for spoliation of evidence must show (1) a duty to preserve evidence and (2) the negligent or intentional destruction, mutilation, alteration, or concealment of evidence. Spoliation of evidence can result in sanctions and an adverse inference against the spoliator that the evidence would have been unfavorable to the spoliator.  

Here, the Indiana Court of Appeals found the hospital’s failure to preserve additional video from the one camera it preserved video from and video from one of the other two cameras, which was above the main entrance and showed the main lobby before, during, and after Rosen’s fall, was spoliation. The Court found the hospital had knowledge that litigation was possible—and thus a duty to preserve evidence—as early as the day after the fall, noting that was when the hospital security supervisor reviewed the video footage from the three cameras and preserved the 10-12 seconds of footage from the one camera. The Court reasoned that, had the hospital preserved earlier video from the one camera when the wheelchair was not obscuring the mat, that footage may have shown the state of the mat before Rosen’s fall, which would have been relevant to Rosen’s claim. Similarly, while the hospital security supervisor stated the other two cameras did not show Rosen’s fall, the Court noted that no evidence was presented by the hospital as to whether the footage from the camera above the entrance showed the state of the mat before Rosen’s fall.  

The Court found the hospital’s spoliation of the video footage, whether negligent or intentional, prejudiced Rosen’s case. Rosen was unable to prove negligent maintenance of the floor mat because the video the hospital preserved did not show the state of the mat, whereas the erased video may have. The Court noted that, while Rosen could not prove the erased video definitively would have shown the state of the floor mat, she did not have to prove that. She only needed to show the spoliated evidence was “relevant evidence that might be useful to an adversary.”

As to remedies for the hospital’s spoliation, the Court found the trial court should have at a minimum given Rosen’s proposed jury instruction on spoliation, which stated that, “If a party fails to produce a document or physical evidence under the party’s exclusive control, you may conclude that the documents or evidence would have been unfavorable to the party’s case.” The Court found this instruction to be an accurate statement of the law and the trial court’s refusal to give the spoliation instruction was an abuse of discretion and reversible error. The Court remanded the case for a new trial, directing the trial court to give the spoliation instruction and grant any other appropriate sanction for the hospital’s spoliation of evidence.

You can read the Court’s full opinion here.