How a Slip and Fall Spoliation Letter Protects Evidence for Your Claim

At-fault property owners sometimes destroy evidence that’s critical to a slip and fall claim. Here’s how to use a spoliation letter to protect evidence.

If you were injured in a slip and fall accident, you can file a claim for compensation with the property owner’s insurance company. Your slip and fall claim must be supported with evidence that proves the property owner was negligent.

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 evidence, a judge can impose a fine against them or find them at fault for your accident.

Why You Need a Spoliation Letter

Spoliation is when a person or entity intentionally destroys or alters evidence in a personal injury case. People or businesses often do this 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.

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 helps prevent an owner from legally destroying evidence of a fall.

Preserving Evidence in Anticipation of a Lawsuit

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 case determine when someone should reasonably anticipate a claim.

Reasonable anticipation of a lawsuit 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.

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.

6 Types of Slip and Fall Evidence to Preserve

A fall victim wants to preserve all evidence related to their accident 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.

1. Video Evidence

Video evidence includes videotapes, like surveillance videos, that a property owner took on the day of your accident. You want videos taken of the area near where you fell. Seek to preserve videos taken on the date of your accident and the prior day as well.

A property owner may try to avoid fault 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.

2. 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.

3. 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.

Seek 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 neglected to fix it.

4. Employment Files

Businesses usually keep files for each of their employees. Ask the business to preserve personnel files of all employees who worked on the date of your accident.

Employment files are important because they contain 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.

5. Maintenance and Cleaning Contracts

Seek to preserve any maintenance and service contracts 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. Sometimes, it tries to pass the blame to some other third-party responsible for maintaining or servicing its property.

6. Safety Meetings and Inspection Records

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

Ask the business to preserve safety meeting minutes and inspection records. 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

To win your injury claim, you’ll have to show that the property owner knew or should have known of a hazardous condition and failed to fix it. Incident reports, videos, and maintenance records pertaining to your slip and fall can be compelling evidence that shows the property owner was negligent.

Your account of what happened is important, but the adjuster won’t accept your story outright.

When you negotiate your slip and fall claim, the insurance adjuster will need to see 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 entirely.

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

How to Write a 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.

You can include spoliation language in the 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 example:

“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, 2022

RE: Personal Injury Claim for Slip and Fall Accident on January 1, 2022

To Whom It May Concern,

On January 1, 2022, 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, 2021, and January 1, 2022
  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, 2022
  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 2021
  7. Any e-mails, electronic messages, digital or hard copy letters, notes, memos, or other documents relating to my accident
  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 to infer fault. This means the judge tells the jury to presume that the spoiled evidence would have helped prove the injury victim’s claim.

Case Example: 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 the 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 found in favor of Feldman and awarded her $522,000 in damages. The verdict was upheld on appeal.

In addition to instructing the jury to infer fault, a judge can outright declare a party at fault if they find sufficient evidence of spoliation.

How an Attorney Can Help

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

Complicated premises liability claims, or claims that involve serious injuries, are best handled by an experienced slip and fall attorney from the beginning. Your attorney will send a spoliation letter to each potentially liable party.

If you decide to handle your case on your own but later find out the property owner destroyed or hid evidence, immediately seek legal advice from a personal injury lawyer. Spoliation can be a complex legal issue.

Most law firms offer a free consultation to injury victims. Personal injury lawyers typically work on a contingency fee basis, meaning 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.