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Joseph Essenter and Sylvia Essenter v. Cumberland Farms

January 14, 2011




Presently before the Court is Plaintiffs' Motion for summary judgment on the issue of liability or, in the alternative, an adverse finding and inference in favor of Plaintiffs as to the cause of Mr. Essenter's accident. Dkt. No. 17. Plaintiffs Joseph Essenter and Sylvia Essenter ("Plaintiffs") filed this suit in state court on April 15, 2009 for negligence and loss of consortium against Defendant Cumberland Farms, Inc. ("Cumberland Farms") and Defendant V.S.H. Realty, Inc. ("V.S.H. Realty").*fn1 Dkt. No. 1, Ex. A. On May 7, 2009, Defendant removed this action to the Northern District of New York based upon diversity jurisdiction. Dkt. No. 1. For the reasons that follow, Plaintiffs' Motion for summary judgment is denied, but Plaintiffs' request for an adverse inference is granted.


On the night of January 19, 2009, Joseph Essenter fell and was injured in the parking lot of Cumberland Farms, located at 505 Campbell Avenue, in Troy, New York. Plaintiffs' Proposed Finding of Facts ("Pls.' PFF ") (Dkt. No. 19) ¶¶ 1, 2. This fall caused a tear in the distal quadriceps tendon of Mr. Essenter's right knee, and surgery was required to repair the damage. Id. ¶¶ 4, 5, 6, 7. Mr. Essenter stated that the temperature that night was freezing and that he slipped on ice, slush, or a combination of those wintery weather conditions which had existed in the Defendant's parking lot area. Id. ¶¶ 9, 10. That same evening, another store patron, Todd Carl, was present. Id. ¶ 11. He testified that at the time of the accident he observed the presence of ice and slush in the poorly maintained parking lot and areas around the gas pumps where Mr. Essenter fell. Carl Deposition (Dkt. No. 19, Ex. T) at 9-11.

The National Oceanic and Atmospheric Administration confirmed that there was no precipitation at the time of the accident; however, there was light snowfall in the hours preceding the accident, and further, there was approximately three inches of snowfall the day before. Pls.' PFF ¶¶ 18, 19, 20. Additionally, there was as much as six inches of snow or ice on the ground on the evening the accident occurred that remained from previous snowfalls. Id. ¶ 22. The highest temperature reached the day of the accident was 28 degrees, with a low of 20 degrees. Id. ¶¶ 23, 24. The temperature and weather conditions throughout the day of the accident indicate that the previous day's snow would have begun to melt during the daytime hours and then re-freeze in the colder evening air. Id. ¶¶ 23, 24, 25.

On January 26, 2009, Sylvia Essenter, the wife of Joseph Essenter, contacted Colleen Durr, the manager at Cumberland Farms, to notify her of the incident. Id. ¶¶ 35, 36. An accident report was filled out with the information provided by Mrs. Essenter. Id. Subsequent to receiving this information, Ms. Durr viewed the Rapid Eye Camera video for the evening of January 19, 2009. Id.

¶ 39. While viewing the video, Ms. Durr printed still photographs from the computer screen, and made notes of what they depicted. Id. ¶ 40.

After viewing the video and printing the still shots, Ms. Durr copied the pertinent portion of the video onto a DVD. Id. ¶¶ 45, 46. The Rapid Eye system was a new system at this store location, and was a relatively new feature for Cumberland Farms in general. Id. ¶ 49. Ms. Durr testified that because most locations did not yet utilize the Rapid Eye system, no official training manuals or procedures for use had yet been produced by Cumberland Farms. Id. ¶ 50. Despite Ms. Durr's unfamiliarity with the system, she proceeded to make a copy of the surveillance footage, following company protocol. Id. ¶ 46. Ms. Durr states that she viewed the first several seconds of the DVD to ensure that it recorded properly. Id. ¶¶ 52, 53. Ms. Durr went on to send the DVD, along with the still photographs and accident report, to Cumberland Farm's Risk Management in Massachusetts. Id. Upon receipt of these items, Cumberland Farm's Risk Management filed the report and DVD and took no further action; Cumberland Farms now contends that the DVD is blank and that there are no images available to disclose. Id. ¶ 68.

Counsel for Plaintiffs first contacted the insurer of Cumberland Farms by letter dated March 23, 2009, little more than two months after the date of the accident. Id. ¶ 55. Shortly thereafter, Plaintiffs commenced this action by filing a summons and complaint with the clerk in Rensselaer County dated April 15, 2009, and then amended the complaint two days later. Id. ¶ 56. Plaintiffs made discovery demands on July 8, 2009. Id. ¶¶ 59, 61. The Notice to Produce sought any photographs or video depicting the accident scene at the time the accident occurred, as well as footage from before and after the accident. Id. ¶ 59. In response to Plaintiffs' request, Cumberland Farms produced still photographs of the premises at 505 Campbell Avenue from a date and time other than that of the accident. Id. ¶ 60.

Plaintiffs' Demand for surveillance material sought "any and all films, photographs, video tapes or audio tapes, including transcripts or memoranda thereof, and all portions of such material including out-takes, rather than only those portions the Defendants intend to use involving Plaintiff Joseph Essenter and his activities." Id. ¶ 61. In response to Plaintiffs' Demand for surveillance material, Cumberland Farms produced four low-quality computer printouts, which depicted screen-shots from Defendant's surveillance video. Id. ¶ 61. Plaintiffs, beginning on November 2, 2009, and continuing through June 29, 2010, made continuous demands for the actual surveillance footage but Cumberland Farms informed Plaintiffs that no video existed. Id. ¶¶ 64, 66, 67, 72, 73, 65. Later, Defendant advised Plaintiffs that although a video had once existed, the initial transfer to DVD performed by Colleen Durr did not work, the DVD was blank; and the footage was no longer on the computer system at the Cumberland Farms store because recordings are only saved for thirty days. Id. ¶ 68, 69.


Spoliation is "the destruction or significant alteration of evidence, or the failure to preserve property for another's use as evidence in pending or reasonably foreseeable litigation." Byrnie v. Town of Cromwell, Bd. Of Ed., 243 F.3d 93, 107 (2d Cir. 2001) (quoting West v. Goodyear Tire & Rubber Co.,167 F.3d 776, 779 (2d Cir. 1999)). In order for a moving party to be successful on a motion seeking sanctions for spoliation of evidence, they must demonstrate: (1) the party having control over the evidence had an obligation to preserve it at the time it was destroyed, (2) the party having control over the evidence acted with a culpable state of mind, and (3) the missing evidence is relevant to the moving party's claim or defense such that a reasonable trier of fact could find that it would support that claim or defense. Residential Funding Corp. v. DeGeorge Financial Corp.,306 F.3d 99, 107 (2d Cir. 2002).

A court has authority to impose sanctions in response to spoliation of evidence. Where a party violates a court order --- either by destroying evidence when directed to preserve it or by failing to produce information because relevant data has been destroyed --- Rule 37(b) of the Federal Rules of Civil Procedure provides that the court may impose a range of sanctions, including dismissal or judgment by default, preclusion of evidence, imposition of an adverse inference, or assessment of attorneys' fees and costs. Fed. R. Civ. P. 37(b); see Residential Funding Corp.,306

F.3d at 106-07; Metropolitan Opera Assn., Inc. v. Local 100, Hotel Employees and Restaurant Employees International Union,212 F.R.D. 178, 219-20 (S.D.N.Y. 2003).

1. Spoliation of ...

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