A spoliation finding can fundamentally alter the trajectory of a case. An adverse inference charge which invites the jury to assume that missing evidence would have been unfavorable can be outcome-determinative on both liability and damages. For that reason, New York courts have traditionally exercised restraint, generally requiring proof that the alleged spoliator was on notice, typically via a preservation demand, that the evidence would be needed for litigation.
A recent First Department decision suggests that restraint may be eroding.
In Mangual v. New Life School, the Appellate Division affirmed the trial court’s decision to issue an adverse inference charge based on the loss of surveillance footage and nursing notes, even though the plaintiff did not issue a formal preservation notice and did not commence litigation until more than two years after the incident.
The factual record mattered. The plaintiff’s mother testified that she viewed surveillance footage with school employees on the date of the incident. Defendants did not rebut that testimony. A defense witness acknowledged the existence of hallway cameras and conceded that conversations related to the incident would have occurred in areas covered by surveillance. A contemporaneous student statement indirectly corroborated that the incident extended beyond the classroom and into the hallway. Taken together, the court found sufficient evidence that relevant footage existed and was lost.
The same was true of the nurse’s notes. It was undisputed that the student was treated immediately after the incident, and defendants’ witness admitted that such treatment would have been documented. The trial court concluded that relevant medical records once existed and were not preserved.
What is most significant is not the evidentiary analysis, but the court’s view of notice. The First Department held that the seriousness of the incident itself, serious enough to prompt the school to call the police, was sufficient to place defendants on notice of their obligation to preserve evidence. The absence of a preservation demand, and the fact that litigation was not commenced for 2 years, was deemed “immaterial.” Preservation, the court emphasized, was the defendants’ responsibility not the police, and not the plaintiff’s.
Notably absent from the decision is any meaningful guidance as to when an incident becomes “serious enough” to trigger this duty. In Mangual, the court pointed to police involvement. But that leaves open a host of practical questions for defendants, insurers, and claims professionals operating in real time.
The takeaway is straightforward and sobering. The First Department appears increasingly willing to find evidence preservation obligations triggered by the incident itself, not by formal notice. For claims handlers and defense counsel, this underscores the need for early, aggressive investigation; clear documentation of why evidence was not preserved; and, when in doubt, preservation of potentially relevant materials for the full statute of limitations period.
In close cases, the failure to do so may now tip the balance decidedly in the plaintiff’s favor.
Our team at Gerber Ciano Kelly Brady can help navigate what evidence should be preserved and for how long as well as what step to follow to avoid a spoliation charge. Contact Thomas Bona at Tbona@gerberciano.com and Brendan Fitzpatrick at bfitzpatrick@geberciano.com.
Thomas Bona, Partner tbona@gerberciano.com
Brendan T. Fitzpatrick Partner bfitzpatrick@gerberciano.com
