My response:
You and your wife should see a personal injury attorney. Her because of the store's negligence for premises liability and her damages sustained due to the store's failure to inspect its shopping carts, and you for your damages suffered as the result of your "loss of consortium."
Additionally, and due to the fact that the store is now "hiding" or destroyed the evidence, she may have an additional tort cause of action for the store's "spoliation of evidence."
In March of this year the Kentucky Court of Appeals in Reed v. Westinghouse Electric Corp. reviewed the contention that the trial judge abused his discretion in failing to permit an amendment to the complaint to include the tort of spoliation of evidence.
Although sanctions are provided for intentional and negligent destruction of relevant evidence in Kentucky law, at the time that the judge made the decision, no case law had yet to recognize the tort of intentional spoliation of evidence, thus the trial court did not abuse its discretion in this regard.
Having already noted that, the Appellate Division remanded the case for further proceedings, and directed the trial court to allow the amended complaint alleging the tort of spoliation of evidence to be filed.
The Court specifically noted:
"Such directive action on our part will be the recognition of a cause of action for this tort to the extent of our ability to do so. We are of the opinion that the tort of spoliation is consistent with the statutory and common law of this jurisdiction."
The Court further noted:
"In recent times, with the increased frequency of acts of spoliation of evidence, such conduct must be brought to light and redressed in our courts. Our Supreme Court time and again reminds us that litigation is the search for truth for the purpose of attaining fundamental fairness of all parties. Spoliation of evidence is the undermining of the basic principles of our jurisdiction because, if truth is to be sought, spoliation of evidence is its antithesis."
The Court further quoting 75 Am. Jr. 2d Trial, par. 1
observes that:
"A trial is not a contest between lawyers but a presentation of facts to which the law may be applied to resolve the issues between the parties and to determine their rights. Nor is it a sport; it is in inquiry into the truth in which the general public has an interest. The real objective of a trial is to secure a fair and impartial administration of justice between the parties to the litigation..."
Turning to the question of damages in spoliation cases, the Court stated that there must be a first determination of whether the one party owed a "duty to the other party to preserve the evidence. This duty can arise by contract, voluntary assumption or due to a special relationship of the parties."
Good luck.
IAAL
