[RPPTL LandTen] New Decision: Osmulski v. Oldsmar Fine Wine, Inc. (Spoliation)

Tue Aug 14 15:15:03 PDT 2012

Attached is a recent case involving whether the owner of property upon which there was an alleged slip and fall owes a duty to preserve recorded surveillance camera recordings which might show the alleged claim.  Our Committee has been asked to provide any comments related to the issues raised in advance of this issue making it to the Legislature in the way of some proposed legislation.

If you have any insight or comments regarding the case and issues of premises liability and the preservation of evidence by the landlord (in this case surveillance tapes), please send your comments to Rick Eckhard directly so that we may respond back to the Section.

Thank you.

Neil

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Neil B. Shoter
Partner / LEED Accredited Professional
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From: Michael J. Gelfand
Sent: Monday, August 13, 2012 10:42 PM
To: RPPTL Condominium and Planned Development Committee (condomania at lists.flabarrpptl.org<mailto:condomania at lists.flabarrpptl.org>)
Subject: New Decision: Osmulski v. Oldsmar Fine Wine, Inc. (Spoliation)

Dear Committee Members:

Catching up on a case decisions not previously circulated, attached is the decision issued in Osmulski v. Oldsmar Fine Wine, Inc., 37 Fla. L. Weekly D1578 (Fla. 2nd DCA, June 29, 2012).

This decision addresses whether the owner of property upon which there was an alleged slip and fall owes a duty to preserve recorded surveillance camera recordings which might show the alleged claim?  The Appellate Court held that there is a duty only:

if a written request to do so has been made by the injured party or their representative prior to the point at which the information is lost or destroyed in the normal course of the Defendant's video operations.

Thus, in this matter because there was no notice, and the recorder automatically deleted recordings after sixty days, there was no duty upon the Defendant owner to retain the recording and thus no basis to provide a spoliation jury instruction.

This decision likely will spawn another item on a claimant's checklist, that is to provide a notice to retain items that may document a loss, including camera recordings.  Presumably, if one is representing a claimant, or alternatively a potential jointly liable party or subrogee, then you may be providing notice to the entity controlling the recorder, and likely certainly by Certified Mail Return Receipt Requested.

The Court ends by proverbially crying out to the Legislature to address the issue of the type of notice and presumption for preserving evidence and spoliation.

Have a great week.

Michael J. Gelfand
Florida Bar Board Certified Real Estate Attorney
Florida Supreme Court Certified Mediator:
   Civil Circuit Court & Civil County Court
Gelfand & Arpe, P.A.<http://www.gelfandarpe.com/>
"Assisting Communities to Efficiently Reach Goals"
Regions Financial Tower, Suite 1220
1555 Palm Beach Lakes Blvd.
West Palm Beach Florida 33401
(561) 655-6224

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