Broken Staircase causes Serious Injuries - Adverse Inference for Failure to Preserve Evidence Relati

The case is a personal injury case which occurred on broken stairs in Bronx County, New York. Not so much a slip and fall, the Plaintiff was injured on a broken stair case. As is often the case, when a person sustains a serious injury, someone inspects the site where the serious injury occurred. It is of vital importance that both the counsel for the injured party as well as the counsel for the negligent party inspect the site at which the injury occurred and preserve evidence. This case highlights the importance of that obligation.

Here, the injury occurs in the Bronx, where the Plaintiff is alleged to have sustained serious injuries when he descended down the basement stairs of a building. One year after his injury, the Defendants replaced the basement steps, destroying the staircase of which the injured party originally descended. Although it seems natural (and responsible) to replace broken steps, the issue in this case is one of spoliation. Whether a federal litigator or a personal injury attorney, attorneys should inform their clients to preserve evidence otherwise a court may subject that party to certain sanctions, here an adverse inference. Here, "Plaintiff...testified that on 7/8/12, he was employed as a maintenance worker at the McDonald's restaurant. To effectuate garbage removal, plaintiff exited McDonald's, entered the subject premises through the adjoining front door used by residents and carried large garbage bags to a dumpster in the basement." The Defendant offers certain documents relative to the removal of the original staircase where the injury occurred and which was subsequently destroyed.

Spoliation sanctions "are appropriate where a litigant, intentionally or negligently, disposes of crucial items of evidence involved in an accident before the adversary has an opportunity to inspect them (Kirkland v NYC Hous. Auth., 236 AD2d 170 [1st Dept 1997]). The parties reference Dulac v AC & L Food Corp., 119 AD3d 450 (1st Dept 2014), lv denied 24 NY3d 908 (2014), for the three-fold standard that a moving party must establish in seeking sanctions based on spoliation: (1) that the party with control over the evidence had an obligation to preserve it at the time it was destroyed; (2) that the records were destroyed with a "culpable state of mind," which may include ordinary negligence; and (3) that the destroyed evidence was relevant to the moving party's claim or defense.

To the extent that a court finds that a party has engaged in the destruction of evidence and failed to disclose information that "ought to have" been disclosed, CPLR 3126 vests the court with discretion to make such orders as are just (Ortega v City of New York, 9 NY3d 69 [2007]). After running through the above factors, the Court finds that "the sanction of an adverse inference in plaintiff's favor is hereby ordered; this sanction shall be communicated to the jury in the event of trial."

Once before the jury, the adverse inference will be of enormous impact to a jury in considering whether the negligence of the Defendants. The lesson of this case is clear - after a serious injury, one should call an attorney and document the incident. The case is Osorio v. LOUIS RICHARDT HOLDINGS LLC, 2017 NY Slip Op 50338 - NY: Supreme Court 2017.