Morrison Mahoney Partner Jack Burke obtained a defense verdict from a Superior Court jury in a four-day trial last week in a retail store premises liability case with a spoliation twist.

The plaintiff claimed multiple injuries in a fall during the freak late-October freeze in 2011. The plaintiff argued strenuously that footage from one of the store surveillance video cameras, while angled in such a way that it would not have caught the actual accident, would have shown the weather conditions, and that the photos of the scene taken a few hours later by the manager when the incident report was filed with headquarters would likewise have shown surface conditions. According to the plaintiff, this evidence was spoliated when headquarters lost the footage and photos. This was the subject of a motion in limine (denied at that time to await the evidence) and much arguing and briefing during the trial, resulting in the judge giving an “adverse inference” instruction to the jury. Nevertheless, the jury found no negligence after 25 minutes of deliberation.