A state judge in Long Island has faulted Wal-Mart Stores Inc. for its failure to preserve photos taken at its Uniondale store after a woman claimed she slipped in a puddle of water that had leaked from a display of kiddie pools. However, the judge declined to penalize WalMart by striking its answer to the personal injury suit filed by the woman. Rather, the judge imposed the less severe sanction of a charge to the jury unfavorable to the company. “Certainly, the failure to preserve the photographs has deprived plaintiff, the non-responsible party, of a means of establishing her claim,” Justice Thomas Feinman (See Profile) wrote in Rivera v. WalMart, 22435/08, “but certainly, not of all means of establishing her claim.”
After the July 2008 accident, a store employee took 12 pictures of the toy department area where Sandra Rivera fell and then gave them to the store’s assistant manager. The assistant manager filed the photos in a customer incident report within Wal-Mart’s personnel department, but they could not be found when Ms. Rivera sought them in discovery. Justice Feinman noted that Ms. Rivera had not demonstrated that Wal-Mart’s misplacement of the photos was willful, intentional or in bad faith. But he said the company had not offered a reasonable explanation of the steps it took to preserve the evidence. He concluded that the proper remedy for the spoliation of the evidence was an instruction to jurors at trial that they could conclude that the lost evidence would have damaged the defendant’s case. – Andrew Keshner
Lawyers for Roger Clemens Seek Dismissal of Libel Suit
