Digital and Video Evidence Often Vanishes Automatically, Requiring Injured Persons to Act Quickly.

Osmulski v. Oldsmar Fine Wine, Inc-Florida’s Third District Court of Appeals

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After you’ve been injured, it’s vital that you speak with an attorney as soon as possible because crucial digital evidence must be preserved before it is destroyed.

Recently, a Florida woman found herself in court without a key piece of video evidence because it was automatically deleted from the defendant’s files, and the court ruled that the defendant had no responsibility to preserve the evidence.

Aimee Osmulski slipped and fell as she entered an Oldsmar Fine Wine, Inc. (OFW) store, shattering her right wrist which caused her to miss work and rack up expensive medical bills.

It was raining on the day that Ms. Osmulski entered the store, and water tracked in by other customers had collected just inside the front door. Ms. Osmulski claimed that the water had not been dried, nor had any caution sign been posted to alert customers of the slippery condition.

OFW argued that Ms. Osmulski’s negligence contributed to the accident because she was running as she entered the store. She denied this claim, but was unable to refute it by presenting video evidence of the event because it had been deleted.

The store’s video surveillance system captured the event, but the recording was automatically deleted before Ms. Osmulski’s case went to trial. Osmulski argued that OFW should have preserved the video evidence because her lawsuit was reasonably foreseeable as she had been in communication with OFW’s insurance company regarding the payment of medical bills.

Ms. Osmulski requested a jury instruction stating that either OFW was negligent or that the deleted video would have been unfavorable to OFW.

Looking to case law, the trial court determined that OFW was not obligated to save the video evidence because Osmulski never submitted a written request for them to preserve it.

Her request was denied, and the jury found Osmulski 65% liable for her accident.

Based on legal precedent, Florida’s Third District Court of Appeals agreed with the trial court’s ruling but included in its opinion the hope that Florida’s legislature will address the issue of digital evidence preservation.

Although OFW apparently did not take reactionary steps to destroy evidence which would have been beneficial to Ms. Osmulski in court, the fact is that this case went to trial without video evidence that could have cleared a key point in this case: did Ms. Osmulski contribute to her own fall by running through the store’s entrance.

Currently, many digital databases are purged at regular intervals, commonly 30 or 60 days, but sometimes even sooner than that. Homeowners and businesses are not required to preserve this information without a written request by a suing party. Therefore it is imperative that injured persons speak with an attorney immediately following a slip and fall or other incidents so that proper actions may be taken to preserve evidence before it is automatically wiped clean in the course of normal operations.

Call us or stop by our offices at 43 Cincinnati Avenue in Downtown St. Augustine if you have any questions about an accident, slip and fall or other injury for which you may be entitled to compensation under Florida law.

Canan Law, the most respected team of attorneys in St. Augustine, keeps you informed with blog posts discussing legal terms and Florida court cases that matter to you. Ask your legal question today with our website’s live chat feature!


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