Injuries Caught On Camera. Lights, Camera, ... Lawsuits?!
You can hardly go into any business without there being hidden or exposed surveillance cameras. These cameras are designed to deter theft. On occasion, these cameras will capture individuals being injured. So why is it so hard to obtain these videos? Let's find out.
Surveillance Video v. Incident VideoSurveillance Video. This type of surveillance is done when one party hires a private investigator to follow an injury victim. Surveillance videos caught by private investigators tend to focus on capturing the limitations, or lack thereof, of injury victims. When most people think of this type of surveillance video we think of Dick Tracy or someone hiding in the bushes secretly videotaping someone else. These videos can be valuable at discrediting a lying victim who exaggerates their injury or its affects.
Incident Video. This type of video is created when a store*s theft deterrence camera captures an injury. Unlike surveillance video which attempts to discredit a victim*s subjective complaints, incident video captures only objective facts. The concern in the use of surveillance videos is not present here. There is no subjective feeling that is attempting to be disproved. Instead, this video simply captures the cold, hard truth of how the incident occurred. It reminds us of the famous Dragnet quote by Sgt. Joe, *[a]ll we want are the facts.*
BackgroundIncident video is valuable. It will show you exactly what happened and unlike memories it will not fade over time or alter its story. So you think businesses would want to produce these videos and exonerate their stores, right? Wrong.
Businesses tend to take the position that they will not voluntary produce videos of the incident. After all, having a policy of never voluntarily producing incident video serves to hide instances where businesses are liable for the injuries to their customers. If businesses only produced incident videos where they were not at fault, then injury attorneys would know that the refusal to produce a particular incident video may mean there is favorable footage. To prevent this, many business policies outright refuse to produce these videos voluntarily.
Another common reason for refusing to produce the incident videos is to paint the injury victim as having a faulty memory. Businesses want injury victims to testify without seeing the video. They want to show how the injury victim*s memory differs from the event. Seems reasonable at first, right? However, sometimes injury victims are not asked how the incident happened until years after the incident. Have a difficult time remembering what you ate last week? Try remembering exactly what happened 14 months ago.
Businesses know memories fade. Businesses know that anyone asked to recall an event that long ago will not recall it with complete accuracy. That is why these businesses show the video to their own employees before their employees testify. After watching the incident video, employees know exactly what happened. As a result, employee testimony is sometimes more accurate than the injury victim*s. Businesses use this to try to gain an advantage in court by arguing their recollection of the event is more accurate and trustworthy.
How Did We Get Here?There was a time when businesses did voluntarily provide incident videos. However, at some point businesses began to argue that pursuant to Dodson v. Persell, video of injury incidents captured on camera were work product and privileged. This argument conflates two types of *surveillance videos* * those captured by a private investigator and those captured by store surveillance cameras.
Surveillance videos caught by private investigators tend to focus on capture the limitations, or lack thereof, of injury victims. When most people think of this type of surveillance video we think of Dick Tracy or someone hiding in the bushes secretly videotaping someone else. These videos can be valuable at discrediting a lying victim who exaggerates their injury or its affects.
video, however, solely captures how an incident occurred. There is no room for exaggeration. Rather, it reminds us of the famous Dragnet quote, *[a]ll we want are the facts.*
Dodson v. Persell involved a car accident. Dodson was injured when Persell ran into him. When Dodson filed a lawsuit, he asked Persell whether there was any surveillance taken of him by a private investigator and, if so, production of any such videos. The issue made its way to the Florida Supreme Court which analyzed the issue and ruled, relevant here, that the contents of such private surveillance videos was privileged and not subject to discovery unless the party intended to use the footage at trial. Most importantly, the Court found no problem with the trial court exercising its discretion to require Dodson*s testimony before production of the surveillance video.
30 years after Dodson came Bolitho v. Home Depot USA, Inc. Bolitho was injured on the premises of Home Depot. The incident was captured on store video. When Bolitho requested to view it, Home Depot said it would not produce the video until after Bolitho*s testimony. Bolitho asked the court to compel Home Depot produce the video of how the incident happened. However, the court, citing Dodson*s *discretion* language refused. Instead, the court ordered Home Depo to turn over the incident video immediately after Bolitho*s testimony.
Since Bolitho, courts are split as to whether injury victims have a right to view incident video before their testimony and it is now the prevailing belief that the timing of when to produce incident video is up to the discretion of the court.
This change has further emboldened businesses to refuse to produce incident videos.
ConclusionHaving won these battles previously, I can tell you it is often a fight. If you have been injured in a slip and fall or trip and fall and there is video of the incident, you need someone who will fight for the production of the video prior to your sworn testimony.