Can a Plaintiff Raise the Issue of Spoliation Years Later in the Middle of a Case?

In a lawsuit that concerned a slip-and-fall allegation, for four years after the incident giving rise to this action, the plaintiff maintained that he slipped and fell on water that was leaking from an overhead emergency exit on the roof of the bus. He testified that the only place the water could’ve come from was from the overhead exit and that water actually dripped from that exit onto his knee. He also alleged that it was a “totally dry” sunny morning. Now, after filing his Second Amended Complaint over two years after he initiated his lawsuit, for the first time, he alleged that the fall could have also been due to the water leaking from the bus’s air conditioning system and asked the court strike the County’s Answer because it repaired the air conditioning system. According to the defendant, in over two years of litigation, the plaintiff never requested to inspect any part of the bus. Only at this point did the plaintiff’s allegation of spoliation arise.


On September 6, 2016, the plaintiff fell on a Chatham Area Transit Authority (“CAT”) bus. He filed his initial Complaint in July 2018. In February 2019, he filed his First Amended Complaint. Both alleged that he “slipped and fell due to wet steps that came from water leaking from the CAT bus ceiling.” The plaintiff testified that the water that caused his fall was leaking from an emergency hatch on the ceiling of the bus and, further, that the water was also dripping on his knee from above. In July 2020, nearly four years after the incident and after two years with two Complaints alleging the water causing his fall came from a leak of an overhead exit, the plaintiff filed his Second Amended Complaint, adding more causes of action and, for the first time, claiming the source of the water causing his fall could have also come from a leaking air conditioner. The defendant moved to dismiss his negligent inspection, maintenance, repair, and failure to warn claims on the basis that the County had no knowledge of any leak or hazardous condition prior to the plaintiff’s fall. Among the evidence in support of CAT’s lack of knowledge were a comprehensive preventative maintenance inspection 10 days prior to the incident and inspections by the bus driver on the morning of the incident prior to the plaintiff’s fall. According to the defendant, all of these demonstrated that there were no known leaks from emergency hatches or the bus A/C system.

The plaintiff filed a Motion to Strike the defendant’s Answer for Spoliation and sought to have the Court strike the defendant’s Answer for alleged spoliation by CAT’s repair of the air conditioning system on the bus.

The Court’s Analysis

Judge Hermann W. Coolidge, Jr. wrote that spoliation refers to “the destruction or failure to preserve evidence that is relevant to contemplated or pending litigation.” Such conduct may create the rebuttable presumption that the evidence would have been harmful to the spoliator. “However, in order for the injured party to pursue a remedy for spoliation, the spoliating party must have been under a duty to preserve the evidence at issue.” In the case of a defendant, such duty arises when the alleged spoliator has actual or constructive notice that the plaintiff is contemplating litigation. The fact that someone is injured in an accident, without more, is not notice that the injured party is contemplating litigation sufficient to automatically trigger the rules of spoliation.

To meet the standard for proving spoliation, the injured party is required to show that the alleged tortfeasor was put on notice that the party was contemplating litigation. Even if evidence was wrongfully destroyed, an injured party must still show prejudice in order to prove spoliation, and the grant of summary judgment is appropriate if the injured party cannot establish any causal link between the failure of his underlying claims and the alleged misconduct by the defendant.

The defendant argued that the plaintiff failed to meet his burden to establish and benefit from any court action related to the alleged spoliation of evidence. The defendant pointed to the fact that the plaintiff didn’t cite to a case where spoliation of evidence had been upheld by Georgia appellate courts when it relates to the repair of a condition that causes a water leak. According to the defendant, the plaintiff failed to meet his burden because he couldn’t show CAT could reasonably foresee this litigation, or had reasonable notice that the A/C system was relevant to this incident. The court agreed.

The plaintiff also alleged that CAT was on notice to preserve the air conditioning system and had a duty to not repair it because its Safety Director, “in her own words,” provided that “slip and falls are foreseeable on buses.” The defendant argued that her statement was ambiguous and that it didn’t indicate that a lawsuit would likely be the result of such an incident, thus triggering a duty to preserve relevant evidence. Thus, the defendant argued that it was unlikely that CAT was on notice or could have anticipated that any fall would foreseeably lead to litigation.

The plaintiff amended his Complaint a second time to allege an alternate source of water that could have caused his fall. He received the incident report on December 14, 2018. His First Amended Complaint, filed on February 5, 2019, months after he received the incident report, continued to solely allege a leak from the overhead emergency exit. He subsequently used the new allegation, made for the first time in 2020 and two years after the filing of the original Complaint, as a basis for a spoliation argument that CAT was on notice in 2016 of litigation and had the duty to preserve the A/C system and not repair it in 2016.

However, the plaintiff, himself, testified unequivocally that the water that caused his fall was leaking from an emergency hatch on the ceiling of the bus. When asked if he was certain that the water was coming from an overhead exit do, the plaintiff reaffirmed, “Yes. Yes,” and that there were “no other places it could have come from.”

According to the defendant, despite the plaintiff’s own testimony to the contrary about the source of the water, he relied on the hearsay of an incident report to support his claims that the A/C was the source and ignored the bus driver’s testimony that she didn’t write that specific comment and didn’t know the source of the water. While the report did say the fall was “due to water on floor from A/C,” according to the defendant, the bus driver didn’t write this phrase. Further, the judge saw that the comment was written in different handwriting. Thus, the judge found that the evidence suggested that the statement attributing the source of the water to the A/C system wasn’t supported by any known sworn testimony, but rather an extraneous addition made by another person at a later date.

CAT didn’t disputed that there was a leak of the bus’s air conditioning system on September 8, 2016, two days after the plaintiff’s fall, which was later repaired on September 22-23, 2016. The bus records showed the leak was reported and the system was repaired days and weeks after the incident, with detailed repair notes and maintenance records showing what was wrong with the air conditioning system.

Because the plaintiff couldn’t show that CAT had sufficient notice of litigation to preserve the air conditioning system, or a duty to do so under the Georgia’s spoliation laws, and couldn’t show how having the opportunity to inspect the bus air conditioning system at some point after his filing of this action, nearly two years after the incident itself and over four years prior to his Motion to Strike, would be able to distinguish the state of the air conditioning system on September 6, 2016, (the date of the fall), from its state on September 8, 2016, the date the A/C system was first reported to have a leak (or any date thereafter), the plaintiff couldn’t show that he was prejudiced and failed to meet his burden to establish a spoliation claim.

Therefore, Judge Coolidge held that the plaintiff failed to meet his burden to establish spoliation of evidence occurred or that he was prejudiced by CAT’s repair of the bus air conditioning system. As a result, the Court denied the plaintiff’s Motion to Strike the defendant’s Answer for Spoliation. Albright v. Chatham Area Transit Auth., 2020 Ga. State LEXIS 4193 (Ga. Chatham Cnty. December 29, 2020).

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