December 2021

Sponsored by:

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President's Letter
By: Brian Chance

I hope this letter finds you well and anxiously awaiting the holidays.  It is hard to believe that we have already come to the end of the year.  If 2020 was the year of COVID, 2021 was the year where we had to learn how to deal with it.  At the beginning of the year, most of us were wearing masks, restaurants were closed for indoor dining, retailers were struggling to stay open and courthouses were closed.  We have come a long way in just 11 months! ​

In October, we held our Lighthouse Conference in Dallas.  We had 50 members join us to learn more about the technology trends creating legal issues for our industry clients.  We covered a litany of topics from cyber security, privacy, data breaches and artificial intelligence.  It was a great program that covered emerging legal issues that will continue to evolve for many years.  Thank you to everyone who attended, especially the speakers and our sponsors.  You made the program a great success.  Where else can you go to meet good friends, have a good time and actually gain knowledge?  Nowhere else but a NRRDA event! 

While this time of year is usually focused on holiday gatherings, shopping and family, it is also time to look forward to next year.  Our committees have been busy planning our 2022 Annual Conference in San Antonio.  We have developed a great program and look forward to seeing our friends and members in person – many for the first time in 2 years.  Registration is now open – you can register and make hotel reservations here - 
https://whova.com/portal/registration/ccme_202203/. Early bird rates end 12/31/21. 

The hotel is located on the Riverwalk, which gives us plenty of access to venues for gathering. We will be following the local COVID guidance in place at the time of the conference.  Please check our website https://www.nrrda.org/annual-conference.html for announcements.  In addition to the Conference, we will be hosting panel counsel meetings for industry members.  There are a few spots left.  If you are interested in hosting a panel counsel meeting, please contact us at [email protected].  Members who host panel counsel meetings receive a host of benefits including free registration and hotel and travel reimbursements 

We will be hosting a golf outing and community service project the day before the conference starts. We will also hold our annual members meeting Thursday afternoon after the conference.  There are three open attorney board seats and two industry board seats.  If you are interested in shaping NRRDA’s future and have been a member for three years and worked on committees for at least two years, we encourage you to run. You can nominate yourself or another deserving members. Click here for the nomination form. We look forward to seeing you and creating the special environment that comes with our annual conference. 

As we all put the challenges of 2021 behind us, we hope the New Year brings better times for all.  Thank you all for your continued support of NRRDA and on behalf of the Board, we wish you the happiest of holidays and a Happy New Year! 

#NRRDA2022
#NRRDAnetworking
#NRRDAeducation
Mark your calendars for March 2-4, 2022 at the Westin San Antonio Riverwalk. Registration is open - click here for all the details.

Early bird registration ends 12/31/21. Register today to take advantage of the best pricing!

The annual golf outing will be held at the Quarry Course on March 2. There is an opportunity to fund golf for Industry attendees, register today!

The service outing on March 2 at the San Antonio Food Bank is limited so register today for this optional activity.
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NRRDA appreciates the support of all of our sponsors - there are still many high exposure sponsor opportunities - click here for all the details.

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Booze-To-Go —The Changing Landscape Of Takeaway Alcoholic Beverages In The United States
by L. Paige Hall - Engles, Ketcham, Olson and Keith, P.C.

Since the COVID-19 Pandemic, multiple states have approved new legislation approving restaurants and bars to sell to-go cocktails and alcoholic beverages. Prior to the pandemic, most states prohibited the sale of alcoholic beverages and cocktails by bars and restaurants; however, since the pandemic, many jurisdictions have approved the to-go sale of beer and liquor by these establishments on a permanent basis...

With the enactment of new legislation regarding the sale of alcoholic beverages, restaurants and bars should be aware of the local requirements of the legislation and how the laws of the individual jurisdiction may impact the to-go sale of wine, beer, and liquor, including the following potential issues that may be faced in the jurisdiction:

• Licensing Requirements: Many of the new statutes enacted require leasing and licensure for restaurants and bars to sell alcoholic beverages to go. For example, in Arizona bars and restaurants will need to apply for a lease and pay a fee in order to offer alcoholic beverages to go.3 Some jurisdictions, such as Nebraska and Wisconsin, have chosen to allow the sale of alcoholic beverages to patrons on a to-go basis if the restaurant or bar already holds a certain type of liquor license, and merely requires the licensee to provide notice of the to-go beverages at the time of annual renewal of the license.4 Restaurant and bars wishing to offer takeout alcohol will need to familiarize themselves with the licensing requirements of its jurisdiction and determine whether any new or additional licenses are necessary prior to offering this service.

• Quotas: Some of the legislation passed to permit sale of wine, beer and cocktails for off-premises consumption has statutory language enacting a quota on the number of licenses issued to permit such sales. For example, Montana House Bill 226 has limited the number of permits that will issue per geographic area.5

​• Availability of Delivery: Restaurants and bars will need to review the legislation to determine whether the legislation recently passed in their state has authorized the ability to deliver beer, wine and cocktails, as this differs from jurisdiction to jurisdiction. For example, Arizona House Bill 2773 and West Virginia House Bill 2025 permit restaurants with appropriate licensure and leasing 1 Cocktails To-Go Help Restaurants Stay Afloat, January 12, 2021, https://www.pewtrusts.org/en/research- and analysis/blogs/stateline/2021/01/12/cocktails-to-go-help-restaurants-stay-afloat.2To-gococktails will stick around in at least 20 states after the pandemic, May 28, 2021, https://www.cnbc.com/2021/05/28/to-go-cocktails-will-stick-around-in-at-least-20-states-after- covid.html. 3 Gov. Ducey legalized to-go cocktails in Arizona. 5 questions answered about the new law, May 19, 2021, https://www.azcentral.com/story/entertainment/dining/cocktails/2021/05/19/to-go-alcohol-cocktails-legal phoenix/5146894001/. 4 Nebraska Legislative Bill 274; Wisconsin Assembly Bill 32. 5 Montana House Bill 226, §16-4-201. 2 agreements to deliver beer, wine and cocktails and permit them to utilize appropriate registered alcohol delivery contractors.6 Meanwhile, Montana House Bill 226 and Wisconsin Assembly Bill 32 only authorize curbside pickup of alcoholic beverages to be consumed off-premises, do not intend to authorize delivery to residences or other businesses.7 Some state legislation, such as Arkansas Act 703, have limitations prohibiting the use of third-party delivery services making delivery of alcoholic beverages. Restaurants and bars will want to check the language of the legislation to ensure their to-go beer, wine and cocktail delivery is in compliance with local legislation. • Restrictions on Sales to Individuals in Vehicles: Some jurisdictions may have restrictions on sales to patrons in vehicles that the establishments should be aware of before commencing to-go sales of alcoholic beverages. In Nebraska Legislative Bill 274, alcoholic beverages can only be sold to patrons in vehicles if the alcoholic beverage is sold with food, if the motor vehicle is in park, if the liquor is placed in the trunk of the vehicle or in an area behind the last upright seat.8 Similar restrictions are contained in Oklahoma House Bill 2122 and Texas House Bill 1024. 9 Iowa House File 2540 and Ohio House Bill 669 create a criminal penalty for customers who are consuming mixed drinks or cocktails that are not in compliance with passenger area of motor vehicle rules in the bill.10 • Containers: Some jurisdictions have placed restrictions on what type of containers may be used in the sale of to-go alcoholic beverages. In Kansas House Bill 2137, liquor retailers and restaurants must sell alcohol in either unopened original containers or in refillable and sealable containers that discourage tampering. 11 Oklahoma House Bill 2122 and Texas House Bill 1024 have similar restrictions, requiring alcoholic beverages to be contained in “rigid” and “tamper-evident” containers. 12 Iowa expressly prohibits the sale of to-go alcoholic beverages in paper or plastic cups or containers outfitted with a straw or sipping hole. 13 Restaurants and bars seeking to expand into to-go liquor sales should confirm if their location requires any specific containers for to-go offerings that must be utilized. • What Type of Alcohol Can Be Sold Under New Laws: Restaurants and bars looking to develop to go liquor sales should also check with the jurisdiction’s local rules regarding whether there are limitations on what type of alcohol can be sold. For example, in Arizona, restaurants and bars must possess a specific type of lease in order to sell full bottles of spirits for customers to take home.14 • Food Purchases: Restaurants should also be aware if newly enacted legislation requires that food be sold along with alcoholic beverages pursuant to local state statutes. Some have concerns that the enactment of to-go alcohol legislation could lead to excess drinking, and a required 6 Arizona House Bill 2773; West Virginia House Bill 2025. 7 Montana House Bill 226; Wisconsin Assembly Bill 32. 8 Nebraska Legislative Bill 274. 9 Oklahoma House Bill 2122. 10 Iowa House File 2540; Ohio House Bill 669. 11 Kansas House Bill 2137. 12 Oklahoma House Bill 2122; Texas House Bill 1024. 13 Iowa House File 2540. 14 Arizona House Bill 2773. 3 simultaneous food purchase could limit the intoxicating effects.15 For example, the Texas, Arizona, Arkansas, and Kentucky statutes require food to be sold with to-go alcohol sales.16 • Number of Drinks Purchased: Restaurants and bars will also want to check whether their jurisdiction has a limitation on the number of alcoholic beverages that can be purchased per order. For example, Kentucky Senate Bill 67 limits the sales of liquor per order to a number that “a reasonable person would purchase with a meal.”17 Ohio House Bill 669 has a three- drink limit per meal sold, and Georgia Senate Bill 236 permits the sale of two drinks per meal sold containing no more than 3 ounces of alcohol each. 18 • Timing of Alcohol Sales: Some new legislation places restrictions on the timing of the sale of alcohol that restaurants and bars will want to familiarize themselves with. For example, West Virginia House Bill 2025 allows the sale of liquor to occur between 6:00 a.m. and 2:00 a.m.19 Florida Senate Bill 148 cuts off the sale of alcohol either when the restaurant’s food or bar service ends for the day or 12:00 a.m., whichever comes first.20 • Underage Alcohol Sales: Some organizations have also voiced concerns about the ability for underage patrons to access alcohol through to-go alcohol sales. As such, some legislation has placed certain safeguards to prevent the sale of alcohol to minors.21 For example, Iowa House File 2540 requires presentation of a valid driver’s license upon the pickup or delivery of alcoholic beverages and creates civil and criminal penalties for furnishing alcoholic beverages to underage patrons.22 • Dram Shop Liability: Restaurants and bars will also want to be aware of its jurisdiction’s dram shop liability law as it considers exploring the use of to-go alcoholic beverages. As the alcoholic beverages are being taken to be consumed off premises, this could increase the purveyor’s potential liability for dram shop litigation. Restaurants and bars will want to ensure they are up to date on all dram shop liability laws and are properly insured in the event of a dram shop litigation. The passage of to-go alcohol sales legislation requires all vendors to be aware of the specific requirements and liabilities posed by your individual jurisdiction, as the legislation varies greatly from jurisdiction to jurisdiction. Local legal counsel should be consulted with to ensure that retail and restaurant establishments follow the various regulatory and safety requirements proscribed by legislation and to consider any additional liabilities or exposure that may be experienced in the establishment’s jurisdiction. 15 Cocktails To-Go Help Restaurants Stay Afloat, January 12, 2021, https://www.pewtrusts.org/en/research-and analysis/blogs/stateline/2021/01/12/cocktails-to-go-help- restaurants-stay-afloat. 16 Arizona House Bill 2773; Texas House Bill 1024; Arkansas Act 703; Kentucky Senate Bill 67. 17 Kentucky Senate Bill 67. 18 Ohio House Bill 669, Georgia Senate Bill 236. 19 West Virginia House Bill 2025. 20 Florida Senate Bill 148. 21 Cocktails To-Go Help Restaurants Stay Afloat, January 12, 2021, https://www.pewtrusts.org/en/research- and analysis/blogs/stateline/2021/01/12/cocktails-to-go-help-restaurants-stay-afloat.22IowaHouse File 2540. 

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Does Inclusion of the Store Manager as a Non-Diverse Defendant Prevent Removal? The Concept of Fraudulent Joinder
by Floyd G. Cottrell, Cottrell Law Group

Removal to United States District Court is often advisable to avoid unfavorable state court venues and obtain other advantages for the defense, such as greater experience in federal court practice...

Removal “requires satisfaction of the amount in controversy requirements as well as complete diversity between the parties, that is, every plaintiff must be of diverse State citizenship from every defendant.” In Re Briscoe, 448 F.3d 201, 215 (3d Cir. 2006); 28 U.S.C. §§ 1332(a) and 1441.
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Plaintiffs anticipating removal sometimes include a non- diverse defendant such as the manager of the store to defeat removal. Removal can then only occur if the joinder of non-diverse defendants was “fraudulent,” defined as, ”where there is no reasonable ground supporting the claim against the joined defendant, or no real intention in good faith to prosecute the action against the defendants or seek to join judgment.” Brown v. Jevic, 575 F. 3d 322, 326 (3d Cir. 2009), citing In Re Briscoe, supra. The burden of showing fraudulent joinder is on the removing defendant. Batoff v. State Farm Ins. Co, 977 F.2d 848 (3d Cir. 1992).

However, the burden of persuasion shifts when plaintiff seeks to amend the complaint after removal to add a non-diverse defendant and force a remand to State Court. Many courts follow the 5th Circuit analysis of Hensgen v. Deere & Co, 833 F.F2d 1179 (5th Cir. 1987) identifying the following factors determining whether the amendment should be allowed: (1) whether the purpose of the plaintiff’s motion is to defeat diversity jurisdiction; (2) whether the plaintiff was dilatory in seeking to amend the complaint; (3) whether the plaintiff will be prejudiced if the motion is not granted; and (4) any other equitable factors.

To defense counsel, inclusion of the non-diverse defendant store manager or other store employee solely as a “poison pill” against removal is fairly self-evident, since the store itself is vicariously liable for the employee’s actions and his or her presence in the lawsuit is superfluous. Unfortunately, some courts are tolerant of these machinations.

In determining whether joinder of a non-diverse manager or store employee is fraudulent, most courts follow a test of whether there is “no possibility” of the employee defendant being found negligent. “In order to show that naming a non-diverse defendant is ‘fraudulent joinder’ effected to defeat diversity, the defendant must demonstrate by clear and convincing evidence, either that there has been outright fraud committed in plaintiff’s pleadings, or there is no possibility, based on the pleadings, that a plaintiff can state a cause of action against the non- diverse defendant in State Court.” Fayet v. Target Corp., 201 U.S. Dist. LEXIS 32522 (S.D.N.Y.), citing, Pampillonia v. RJR Nabisco, Inc., 138 F. 3d 459 (2d Cir. 1998); See also, Frontera v. Michaels Stores. Inc., 2019 U.S. Dist. LEXIS 58424(S.D. Fl.); Allen v. Home Depot U.S.A., Inc., 2004 U.S. Dist. LEXIS 20014 (W.D. Tx.)

In some states such as Florida and Texas, the “no possibility” test can satisfied by state law requiring that the employee- defendant directly participate in the tortious conduct. See e.g., Accordino v. Wal-Mart Stores East, L.P., 2005 U.S. Dist. LEXIS 34328 (M.D. Fl.)(fraudulent joinder found where the manager, “... did not personally participate in the events giving rise to the accident, did not have knowledge of the conditions surrounding the accident, and was not present at the Wal-Mart store at the time the accident occurred”); Leitch v. Hornsby, 935 S.W.2d 114, 1996 Tex. LEXIS 166, 40 Tex. Sup. J. 159 (1996).

However, the law in other jurisdictions may not be as favorable. Courts have declined to find joinder fraudulent, notwithstanding that the store manager did not directly participate in the negligence or was even present on the premises where the accident occurred. For example, in Holquin v. Kolh’s Dep’t Store, Inc., 2016 U.S. Dist. LEXIS 30356 (D.N.J.), plaintiff slipped and fell on an advertising sign that fell to the floor of the store. Although the defendant store manager was not on duty at the time of the incident, he had been on duty earlier, which “leaves open the possibility that while (he) was on duty, the store’s signage created a hazardous condition that (he) negligently failed to remedy.” In Ahearn v. BJ’s Wholesale Club, Inc., 2020 U.S. Dist LEXIS 47320 (E.D. Pa.), plaintiff slipped and fell on a liquid on the floor of defendant’s store. The manager was named a defendant although he was not on duty on the day of the accident. The court, nevertheless, found a colorable claim against the manager for, inter alia, failing to train employees and institute safety policies. And in Agostino v. Costco Wholesale Corp, 2021 U.S. Dist. LEXIS 125670 (D.N.J.), plaintiff was permitted to amend the complaint to name the store manager as an additional defendant based on his general duty to provide a safe premises.

The foregoing suggests that the decision to charge fraudulent joinder must be informed by an analysis of the pleadings and plaintiff’s theories of liability; the law of the forum state; and the facts pertaining to the particular non-diverse store manager or employee. 

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Proactive Compliance for the Fast-Food Industry
by Joe Spinelli, JS Held

Introduction On April 28, 2021, the New York City Department of Consumer and Worker Protection (DCWP) sent a clear and concise message to the fast-food industry when it filed a petition against Chipotle Mexican Grill, Inc. (Chipotle)...

DCWP evaluated Chipotle's compliance with the New York City Fair Work Week Law, the New York City Earned Safe and Sick Time Act, and Title 6, Chapter 7 of the Rules of the City of New York. After completing their evaluation, DCWP concluded that Chipotle had violated the Fair Work Week Law, including:
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• Failure to provide written good faith estimates;
• Failure to provide advance notice of work schedules;
• Failure to provide schedule change premiums;
​•Failure to obtain written consent to obtain additional hours;
• Failure to obtain written consent and provide premium pay for “clopenings” (closing at night and opening the following morning); • Failure to offer newly available shifts to existing fast food employees;
• Failure to allow use of safe/sick time; and • Failure to maintain compliant written safe/sick time policies. DCWP has also articulated its interest in continuing to scrutinize the fast‐food industry for similar violations and has recommended fast food companies take a proactive approach to ensure compliance with applicable laws. Establishing a Proactive Compliance Program An effective, proactive compliance program would:
• Include an incisive review of the policies and procedures for providing advanced notice of work schedules;
• Provide schedule change premiums;
• Obtain written consent to obtaining additional hours;
• Obtain written consent and pay premium pay for “clopenings” (these restrict ability to sleep and shower between shifts and limit opportunity to eat to as little as ~8 hours);
• Offer newly available shifts to existing fast food employees;
• Allow use of safe/sick time; and
• Maintain written safe/sick time policies in the company's compliance program. It is further recommended that fast food companies identify gaps in their controls governing their employee work scheduling and time keeping processes and evaluate their IT systems for the capability to schedule, track, and record time to facilitate compliance with relevant laws and regulations. Regular site visits to evaluate the design and the effectiveness of the corrective action and controls implemented to enjoin replication of violations is also a necessary prerequisite to an effective program. Finally, fast food companies should conduct training programs for their managers and employees annually, instructing them on all the relevant policies and procedures that have been incorporated into their compliance program and obtain written certification of attendance.

Conclusion
A proactive and effective compliance program is the best way to repudiate future sanctions from government entities and for owners to illustrate to regulators that their company has made a good faith effort to proactively ensure compliance with the Fair Work Week Law and the New York City Earned Safe and Sick Time Act. About the Author Joe Spinelli is a Senior Managing Director in J.S. Held’s Financial Investigations Practice. He is a pre‐ eminent leader in multiple fields, including white‐collar crime investigations, anti‐bribery and corruption, Foreign Corrupt Practices Act (FCPA), risk management, integrity monitoring, and expert witness testimony. Joe can be reached at [email protected] or +1 929 581 6872 

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DEFENDING A CAUSE OF ACTION FOR NEGLIGENT SPOLIATION OF EVIDENCE
by Renée W. Dwyer and John F. Healey, Conway Stoughton LLC

Preventing spoliation of evidence should be a top priority from the moment that an incident potentially giving rise to litigation occurs. This, however, is not always practical.

Retailers and restaurants are all too familiar with allegations of inadequately preserved instrumentalities, missing video footage, lost photos, and lost incident reports--allegations that may result in sanctions under the applicable forum’s civil rules and/or the establishment of an adverse inference instruction at trial. However, depending on the jurisdiction, interference with or destruction of evidence may carry yet another consequence: subjecting the defendant to damages, either through an independently recognized tort of negligent spoliation or a court’s willingness to construe allegations of the subject conduct as stating a common law negligence claim. This article, through its analysis of relevant law in Connecticut, provides an example of how to employ the case law of a given forum to combat a claim of negligent spoliation of evidence. Intentional spoliation, which is more commonly recognized and entails a higher burden of proof, is outside the scope of this article.

First, determine whether your jurisdiction recognizes negligent spoliation as a valid cause of action. Connecticut defendants have seized on silence from the State’s higher courts regarding the existence of this cause of action to prevail in having it stricken from the pleadings. See, e.g., Lage v. Stop & Shop Supermarket Co., LLC, Superior Court, judicial district of New Haven, Docket No. CV106012081S (November 16, 2011, Fischer, J.) (“There is no Supreme Court or Appellate Court authority in the State of Connecticut to support a cause of action for negligent spoliation.”). The court in Lage simply noted that although the Supreme Court had recognized a cause of action for intentional spoliation of evidence, it did not extend such recognition to negligent spoliation of evidence. But see Basso v. Boston Scientific Corp., Superior Court, judicial district of Fairfield, Docket No. CV0760001429S (November 21, 2008, Hiller, J.)
(interpreting the Supreme Court’s endorsement of intentional spoliation as an independent tort as an endorsement of negligent spoliation as the same).

Even if a court rejects the notion of negligent spoliation as an independent claim, however, it may nevertheless entertain the equivalent of such a claim by construing the alleged facts as supporting a cause of action for negligence. For instance, in Cambridge Mut. Fire Ins. Co. v. Fox Heating Service, Inc., Superior Court, judicial district of Tolland, Docket No. CV136006920S (March 11, 2014, Bright, J.), the court declined to recognize negligent spoliation as a separate cause of action, but nonetheless cited authority for the proposition that “[a]n action for negligent spoliation can be stated under existing negligence law without creating a new tort”, and then proceeded to analyze whether the defendant could be liable to the plaintiff in negligence. In such a scenario--or, if the jurisdiction does, in fact, view negligent spoliation as a cognizable claim--the defendant should argue, if plausible, that it did not owe a duty to the plaintiff to preserve evidence.

This argument carried the day in Cambridge Mut. Fire Ins. Co. v. Fox Heating Service, Inc., supra, in which an insurer sued a heating service company for negligent spoliation of a water heater claimed to be vital evidence for the insurer’s separate lawsuit against the manufacturer, seller, and/or installer. The court explained that establishing “no duty” under Connecticut negligence law would require finding (1) that an ordinary person in the defendant’s position would not have foreseen the harm that its alleged mishandling of evidence would cause to the plaintiff and (2) that specific public policy factors disfavor extending liability to the defendant in this particular situation. See Cambridge Mut. Fire Ins. Co. v. Fox Heating Service, Inc., supra. It then identified “the normal expectations of the participants in the activity under review” as the specific public policy factor that discouraged subjecting the heating service company--which inspected, replaced, and disposed of a failed water heater before the manufacturer could examine it, as would have been necessary to trigger the manufacturer’s warranty obligation--to liability in negligence. See id. The court explained that it is unreasonable to expect strangers to a potential lawsuit to preserve evidence in each and every instance giving rise to the prospect of litigation. Id. For example, the court reasoned, “creating such a duty would require a mechanic to preserve every broken, damaged, or defective part it removes from a vehicle, because there is a chance that the owner or the owner’s insurance company will seek indemnification from the parts manufacturer, the mechanic who installed the part, or the company that engineered the vehicle.” Id.

One can imagine the utility of the same analogy to advocate against a legal duty to preserve evidence in potential negligent spoliation claims brought against restaurants and retailers. For example, a guest may report an unstable leg of a barstool or a faulty wheel of a shopping cart but deny or fail to report that such defect caused him injuries. Should he eventually sue the establishment and request to inspect the precise barstool or shopping cart that caused his alleged injuries, it would be reasonable to argue that the defendant had no duty to preserve the instrumentality, even if defective, just because of the theoretical possibility that the guest would later sue. Bear in mind, though, that certain circumstances, such as a customer’s prompt request for the defendant to preserve evidence, may foreclose arguing against the creation of a legal duty.

Finally, alternative defenses against a claim sounding in negligent spoliation may be available depending on the case law of the given jurisdiction. For instance, in Connecticut, a defendant facing a first-party negligent spoliation claim (i.e., a defendant sued under an additional cause of action for suppressing evidence relevant to the plaintiff’s claims in the underlying suit to which the defendant is a party), could argue that even assuming the alleged spoliation, the absence of the spoliated evidence does not preclude the plaintiff from establishing a prima facie case. This position arguably arises from the Supreme Court’s decision in Rizzuto v. Davidson Ladders, Inc., 280 Conn. 225, 905 A.2d 1165 (2006), where, despite only recognizing a cause of action for intentional spoliation and not addressing whether a claim inheres in negligent spoliation, the Court nonetheless cited the following language from the Sixth Circuit: “When . . . a plaintiff is unable to prove an essential element of her case due to the negligent loss or destruction of evidence by an opposing party, and the proof would otherwise be sufficient to survive a directed verdict, it is proper for the trial court to create a rebuttable presumption that establishes the missing elements of the plaintiff’s case that could only have been proved by the availability of the missing evidence. Welsh v. United States, 844 F.2d 1239, 1248 (6th Cir. 1988) (emphasis added). A Connecticut defendant thus could argue that, even assuming the existence of a cause action for negligent spoliation, the Supreme Court strongly suggested that this claim be reserved for compensating victims for the total loss of a prospective lawsuit--not for merely any mistake resulting in the inability to preserve the plaintiff’s evidentiary arsenal to the fullest extent possible. Consequently, a defendant facing this cause of action for failing to preserve video footage, for instance, could argue that other evidence capable of establishing the plaintiff’s prima facie case exists--e.g., an incident report, witness statements, and the plaintiff’s own testimony derived from her participation in the event.
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While the defendant will still have to rebut the negative inferences that plaintiff’s counsel will raise pertaining to missing evidence, defense counsel will presumably be able to present some mitigating factors (e.g., despite proof of transmittal, the TPA or corporate headquarters never received the video or other documentary evidence.
Retailers and restaurants may not always anticipate the circumstances that generate litigation. Notwithstanding, most do employ effective policies and procedures to preserve evidence of promptly reported incidents. However, some evidence— particularly video footage--sometimes goes unpreserved. In these situations, defense attorneys may not expect to encounter a distinct cause of action for conduct traditionally remedied through sanctions and jury instructions. In the event that your jurisdiction does recognize this cause of action, however, or effectively allows it under the guise of common law negligence, arguments may exist to protect your client from this potential additional source of damages. 

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​Board of Directors Nominations Are Open

The NRRDA Board of Directors has three open ATTORNEY seats and two open INDUSTRY seats for the 2022-2025 term. We encourage you to run (or nominate a friend or counsel) and join the continuing directors to ensure the future success of this thriving association.
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Click here to submit the NOMINATION FORM. Self nominations are acceptable. The deadline is January 21, 2022.