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Spoliation of Evidence Jury Instruction: Be Careful What You Ask For

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Spoliation of Evidence Jury Instruction: Be Careful What You Ask For

A recent Georgia Court of Appeals case highlights the dangers of requesting that a jury be given a charge regarding spoliation of the evidence. Spoliation of the evidence occurs when a party knows that evidence may be relevant to potential litigation and then with some degree of bad intent destroys or allows that evidence to be destroyed. As a plaintiff’s attorney, I certainly have come across situations where defendants have conveniently allowed video footage to be destroyed or have violated their own procedures in not preserving evidence. In these situations, it is tempting to ask for a jury charge on spoliation of the evidence. This charge usually instructs the jury that they may infer that the missing evidence would have been helpful to the party who is asking for the spoliation charge. This charge can be very effective.

However, a recent Georgia case shows why you must be careful when you ask for this charge. In Metro Atlanta Rapid Transit Authority v. Tyler, the Georgia Court of Appeals threw out a $25 million verdict awarded in favor of a plaintiff based on the trial courts giving of the spoliation charge. The case involved the tragic store of an elderly plaintiff who had fallen and sustained a traumatic brain injury when leaving a MARTA paratransit bus. While she had initially been conscious and responsive following the accident, she suffered a massive brain bleed later that day and was left in a vegetative state.

The plaintiffs argued that MARTA owed a duty to assist the plaintiff on leaving the vehicle. MARTA contended that the plaintiff did not have stability or balance issues and that it did not know of her need for assistance. MARTA had preserved the part of the videotape showing the fall, but not the part showing the plaintiff entering the bus. The plaintiff’s lawyers learned for the first-time during trial that an earlier part of the videotape had existed and that MARTA employees had watched it following the plaintiff’s fall. They sought the jury charge on this basis.

The Court of Appeals noted that spoliation requires that the party be aware that the evidence will be relevant to potential litigation and must act in bad faith in allowing it to be destroyed. It found that the trial court had failed to make any evidentiary findings regarding spoliation and that the record did not appear to support spoliation. The court noted that the plaintiff had been conscious following the fall and that the fact that MARTA employees had reviewed the videotape did not indicate that they knew that litigation would result. The court also noted that the plaintiff had not filed a motion for sanctions based on the alleged spoliation (likely because they didn’t know about it until trial).  The court remanded the case for a new trial.

Georgia law on giving a jury instruction for spoliation of evidence is like the law of many other jurisdictions. For instance, the 11th circuit has cautioned about the extreme nature of the spoliation charge and the need for a finding that the alleged spoliated acted in bad faith.[1]  An Arizona case provides a good example of when the charge may be warranted. Arizona requires a finding that the missing evidence be important to the case, known by the alleged spoliated to be relevant to a potential lawsuit, and destroyed in bad faith.[2]

In McMurtry v. Weatherford Hotel, Inc., the Arizona Court of appeals reversed a trial court’s refusal to instruct the jury on spoliation. In that case, a wrongful death case arising from the decedent’s fall from a hotel window, the hotel defendant’s employees watched a video showing the fall and surrounding events captured by the hotel’s cameras immediately after the tragic incident but then allowed the footage to be written over by the surveillance system. McMurtry can be distinguished from Tyler by the fact that the hotel employees knew the seriousness of the injuries (death) at the time they watched the videotape. The court noted that litigation should have been apparent at the time of the video. While they claimed that they thought the police had made a recording, they did nothing to verify this assumption.

Tyler cautions against requesting a spoliation charge unless one has established facts showing spoliation on the record. If you are going to seek it, start building a record for it early in the case by establishing the chain of custody of the evidence, doing discovery to ascertain the state of mind of the individuals in the chain of custody and by pursuing sanctions, possibly before the date of the trial. If you have any doubt about spoliation (and think that you can win without the charge), try to get the destruction of the evidence before the jury for some other reason and do not seek the charge. The jury will still smell a rat even without the charge.

If you have been injured at a store or in a public place, or if you are a lawyer with a client who has been injured in a premises liability case, feel free to reach out to us with any questions that you might have.


[1] Tesoriero v. Carnival Corp., 965 F.3d 1170, 1184 (11th Cir. 2020).
[2] McMurtry v. Weatherford Hotel, Inc., 293 P.3d 520, 536 (Ariz. Ct. App. 2013) The Arizona courts very colorfully describe the state of mind necessary for bad faith as having an “evil mind.”

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