How a Slip and Fall Spoliation Letter Helps Protect Your Injury Claim

Here’s how a slip and fall spoliation letter helps protect critical evidence you may need to win your injury claim.

In 2015, the total medical costs for falls in the U.S. amounted to more than $50 billion.¹

Slip and fall accidents can lead to serious injuries, both temporary and permanent, that result in expensive losses. An accident victim can file a claim to seek compensation from the at-fault property owner’s insurance company.

Before the insurance company will pay, you’ll need to support your claim with evidence that helps prove the business or property owner caused your accident and injuries.

A spoliation letter helps ensure that the at-fault party does not destroy or otherwise “spoil” evidence that helps your claim.

If a person or company later harms, loses, or alters any evidence, then a judge can impose a fine against that party or find it at fault for your accident.

The Importance of Spoliation Letters

Spoliation is when a person or entity intentionally destroys or alters evidence in a personal injury case. People or businesses often commit the act to get rid of evidence that another party might use against them.

For example, in a slip and fall accident, a property owner may commit spoliation by erasing surveillance video of a victim’s fall.

A spoliation letter requests that the at-fault party preserves all evidence relevant to the accident.

A spoliation letter is also known as a “litigation hold” or “preservation letter.”

Once a property owner receives your letter, it has a legal duty to preserve any evidence of your slip and fall and resulting injuries. This duty includes taking steps to ensure relevant evidence is not deleted, thrown out, discarded, or goes missing.

The destruction or altering of evidence is not a good thing since it leads to unfair results in injury cases. It also imposes unnecessary financial costs on victims as they’ll have to spend money trying to reconstruct the evidence that was destroyed.

Sometimes, a business may have policies in place that result in the legal destruction of evidence. For example, a grocery store chain may have a policy that calls for the deletion of surveillance videos after 30 days.

Sending a letter quickly after an accident, then, works to prevent an owner from legally destroying evidence of your fall.

Preserving Evidence in Anticipation of Litigation

Even without a spoliation letter, a person or business has a duty to preserve evidence when it reasonably anticipates an injury claim or lawsuit.

The facts of a particular case will often determine when someone should reasonably anticipate a claim. But most states say that the anticipation comes when there is a real possibility or threat of a lawsuit or the filing of a claim.

Reasonable anticipation of litigation is sometimes referred to as a litigation hold. The hold means that the person or entity holding evidence of an accident must keep and protect it.

As we discuss below, if a party fails to take reasonable steps to protect evidence in anticipation of a claim, a judge can impose penalties and fines on that party.

Evidence to Preserve in a Slip and Fall Case

A slip and fall victim will want to preserve all evidence related to their fall and injuries.

The most important evidence to preserve in slip and fall cases is videos and photos, but you should try to preserve other types of evidence as well.

Video Evidence

Video evidence includes videotapes, like surveillance videos, that a property owner took on the day of your accident.

You’ll want videos taken of the area near where you fell. You should seek to preserve videos taken on the date of your accident and the prior day as well.

Sometimes a property owner tries to avoid fault for an accident by saying that a safety inspection was performed of an area shortly before a victim slipped. Having evidence of an area a day before a fall helps keep the owner honest.

Photo Evidence

Photographic evidence in a slip and fall means any photographs that a property owner may have related to your accident.

Start with any photos the owner has of the area where you fell. Also ask to preserve any photos the owner took because of your slip and fall event.

Injury victims should preserve any photos that might relate to their injuries and damages. This includes photos of your ripped clothing or bloodstains found on the owner’s property.

Incident Reports

A slip and fall incident report is usually created by the owner or manager of business property on the day the incident occurs.

The report sets forth the details of your accident and provides proof that your accident occurred. Many businesses have an incident report form where you simply fill in the blanks and check some boxes.

When it comes to preserving evidence, you’ll want to preserve the incident report of your accident and any other reports a business has in its possession.

If you can find a report with similar facts to yours, you can use it to show that a property owner knew about a hazard and should have fixed it.

Employment Files

Businesses usually keep employment files for each of their employees. Ask for the preservation of personnel files the owner has for all of the employees who worked on the date of your accident.

Employment files are important because they’ll contain the contact information for a company’s employees. You or your attorney might use this information to connect with a worker to see if that person witnessed your slip and fall or has any knowledge of it.

Maintenance and Cleaning Contracts

Seek to preserve any maintenance and service contracts that a property owner had with another business. For example, the business might have a maintenance contract for escalators or a service contract for ice and snow removal.

A property owner often tries to blame the victim for the accident. But sometimes, it tries to pass the blame to some other third-party responsible for maintaining or servicing its property.

If an owner blames another party, you’ll have their contact information if you need to file an injury claim with that entity’s insurer.

Safety Meetings and Inspection Records

Some companies have safety departments that conduct regular meetings. A company may also have employees or departments that perform inspections of the company’s property.

It’s a good idea to ask for the preservation of safety meeting minutes and inspection records that a business has in its possession.

These records may show that the area where you fell caused similar problems in the past, and what the business did in response to a prior accident.

Why This Evidence Helps Your Claim

Incident reports, videos, and maintenance records pertaining to your slip and fall can be compelling evidence that the property owner was responsible for your accident.

To succeed in your injury claim, you’ll have to show that a property owner knew or should have known of a hazardous condition and failed to fix it.

Of course, your statements concerning the accident are important. Your personal account of what took place will provide the owner and its insurance company with the facts regarding what took place.

However, when you negotiate your slip and fall claim, the insurance adjuster will want evidence that backs your story up. Without proof of the insured’s fault, the adjuster might give you a lowball settlement offer or deny your claim in its entirety.

With a spoliation letter, the goal is to preserve evidence now so that you can use it later to establish the owner’s negligence.

Writing Your Spoliation Letter

Shortly after your slip and fall event, send a notification letter to the owner of the property where you fell. The letter notifies the owner that you intend to seek compensation for your accident.

Injury victims can include spoliation language in a notification letter to help preserve important evidence. You don’t have to know for sure what kind of evidence the at-fault party may have that could help your claim.

Spoliation language could state:

“This letter will serve to provide you with notice to preserve and retain any information that may be relevant to my injury claim, including, but not limited to video or audio footage recorded on the date of my accident, photographs, written or electronic reports, handwritten notes, and all other evidence relating to the incident.”

If you’ve already provided notice, however, you can still draft a separate spoliation letter.

A well-drafted spoliation letter should include:

  • A brief description of your accident
  • The evidence you want the owner to preserve
  • The action you may take if the owner fails to preserve your evidence.

Example of a Spoliation Letter

Green Apple Grocer
123 Space Needle Way
Seattle, WA 98117

January 4, 2021

RE: Personal Injury Claim for Slip and Fall Accident on January 1, 2021

To Whom It May Concern,

On January 1, 2021, I was injured at the Green Apple Grocer after slipping on a puddle in the store’s frozen food section. The accident took place at approximately 1:30 pm and caused injury to my right ankle.

This letter is to formally demand that you preserve evidence related to my accident and injuries. If you fail to preserve this evidence, it may give rise to the presumption that the evidence was harmful to the defense of any injury claim or lawsuit that I may file.

If you fail to preserve this evidence, I will attempt to receive any permissible sanctions allowed under the law. The destruction, alteration, or loss of any of the below evidence amounts to the spoliation of evidence under Washington law.

I specifically request that you preserve and maintain the following evidence:

  1. Any video recordings of the frozen food section of the Green Apple Grocer for the dates of December 31, 2020 and January 1, 2021;
  2. Photographs of the area immediately surrounding my accident, and any photographs taken as a result of my accident;
  3. Any incident reports filed with the Green Apple Grocer within the last year;
  4. The employment files for all employees that were working at the grocery store on January 1, 2021;
  5. Copies of any maintenance or service contracts that the Grocer is a party to;
  6. Copies of any safety meeting minutes or inspection reports that are in the Green Apple Grocer’s possession for the year 2020;
  7. Any e-mails, electronic messages, digital or hard copy letters, notes, memos, or other documents relating to my accident; and
  8. Any reports, memos, notes, logs, or other documents showing complaints about a wet floor similar to the one that caused my accident.

Thank you for your prompt attention to this matter.

Sincerely,

Joe King
233 First Avenue
Seattle, WA. 98117

Send your spoliation letter certified mail return receipt to ensure that the owner actually received it.

It’s generally a good idea to send a copy of the spoliation letter to the owner’s insurance company so it’s aware that you tried to preserve certain evidence of your accident.

If you find out there is another party responsible for maintaining the evidence you want to preserve, you can send a spoliation to that party, too. For example, if a store uses another company for its surveillance video needs.

Consequences for the Spoliation of Evidence

With or without a spoliation letter, an at-fault party might go ahead and destroy or alter evidence in the hopes of avoiding liability for an accident. If this occurs, several actions can take place against the guilty owner.

If the accident victim files a lawsuit, the judge could sanction the property owner. A sanction is usually a fine imposed on the owner. The specific amount of the fine depends on the facts and severity of the spoliation.

If a lawsuit results in a jury trial and the judge receives evidence of spoliation, the judge can instruct the jury on inference of fault. This means the judge tells the jury that it should infer or presume that the spoiled evidence would have helped prove the injury victim’s claim.

Case Summary: Spoiled Evidence After Trip and Fall 

Gail Feldman was having dinner with her friend and daughter at an Outback Steakhouse restaurant.

After eating, the three women went outside to smoke a cigarette. Gail slowly paced about as she smoked, and her heel got caught in a sidewalk crack. She tripped and fell on her left side.

Feldman was taken to the hospital by ambulance with severe injuries. She suffered permanent injuries to her hip and leg, as well as problems with her knee and back, which required surgery to correct. She also suffered from multiple bone fragments in the top of her leg and a disc herniation.

Gail was ultimately declared totally disabled by the Social Security Administration as a result of her injuries. Given her extensive damages, Gail filed a personal injury lawsuit against Outback Steakhouse.

During Feldman’s trial, spoliation allegations arose during the testimony of the person who managed Outback on the night of Feldman’s accident. The manager’s name was David Weiss.

Before the trial, David testified at a deposition that he could not recall where Feldman was located immediately after her fall. However, during the trial, Weiss stated that when he first saw Gail, she was lying some distance away from the crack in the sidewalk.

Weiss also testified that it was company protocol to prepare an incident report if a customer was injured on Outback property. Further, the report would include a description of the property and the exact location where a victim fell. Weiss admitted that he filled out a report of Feldman’s incident.

Feldman’s attorney informed the judge that he had requested this report before the trial began, but the restaurant did not turn it over.

The judge eventually determined that Outback was guilty of spoliation because it destroyed or hid the incident report.

As a result, the judge provided the jury with an inference of fault, which allowed them to presume that the incident report would have disadvantaged Outback during the trial.

The jury later found in favor of Feldman and awarded her $522,000.93 in damages.

Outback later appealed because of the jury instruction, but the appeal was denied.

In addition to instructing on inferences, a judge can declare that a party was at fault for a victim’s injury if they find sufficient evidence of spoliation.

How an Attorney Can Help

If your slip and fall accident was relatively straightforward and caused minor injuries, you can probably draft a spoliation letter without the need for an attorney. In the letter, make sure to include all of the potential evidence that could help support your case.

But if your accident involved complex facts or you suffered severe injuries, contact an experienced slip and fall attorney for help. This help includes having the lawyer draft a spoliation letter on your behalf.

If you decide to handle your case on your own but later find out that the property owner destroyed or hid evidence, you should also contact an injury attorney for assistance.

Spoliation issues often become complex, and a lawyer is better positioned to know how to respond to them.

Most injury attorneys provide a free initial consultation. Most lawyers also work on a contingency fee basis. A contingency fee means that you don’t have to pay the attorney for their services unless you settle your injury claim or win in court.

Don’t let an at-fault party cheat their way out of liability. Contact a skilled slip and fall attorney to get the compensation you deserve.

Dustin Reichard, Esq. is an experienced attorney with 20 years of work in the legal field. He’s admitted to the Illinois State Bar and the Washington State Bar. Dustin has worked in the areas of medical malpractice, wrongful death, product liability, slip and falls, and general liability. Dustin began his legal career as a JAG... Read More >>