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Florida Third DCA rules in slip and fall case that grocery store defendant had obligation to preserve video upon receipt of presuit request to do so, but was not subject to adverse inference jury instruction for failure to monitor area of fall by camera or logged inspection

On March 4, 2020, in Pena v. Bi-Lo Holdings, LLC, No. 3D19-0581, the Florida Third DCA affirmed a trial court ruling which denied a slip and fall plaintiff’s request for an adverse inference jury instruction against the defendant grocery store based on the store’s alleged spoliation of evidence. The grocery store’s cameras did not record the area of the plaintiff’s fall and there were never any logs compiled of employee inspections of the area. Although the Third DCA indicated that “we wholly embrace the position that upon receipt of the presuit notice, Winn-Dixie was obligated to preserve the surveillance video,” the Court concluded that the defendant had no obligation to create evidence that did not exist, holding that “the mere fact that the area of the fall remained unmonitored by either camera or logged inspection cannot serve as a basis for relief.” The Court cited Osmulski v. Oldsmar Fine Wine, Inc., 93 So. 3d 389, 394 (Fla. 2d DCA 2012) (an adverse inference “allows counsel to argue to the jury the inference that the evidence was lost because it was damaging to the opposing party’s case.”) (emphasis added) (quoting Palmas Y Bambu, S.A. v. E.I. Dupont De Nemours & Co., Inc., 881 So. 2d 565, 582 (Fla. 3d DCA 2004)).