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Ruling mandates workplace injury video evidence

Ruling mandates workplace injury video evidence

Montana employers must preserve video footage of workplace accidents, even if the footage doesn't seem to show pertinent evidence in an accident investigation, the Montana Supreme Court has ruled.

Mark Spotted Horse worked as a machinist for BNSF Railway Co., now Burlington Northern Santa Fe L.L.C., in Havre, Montana, and was injured in September 2009 when his co-worker accidentally lowered a locomotive engine compartment hatch on his head, court filings show. The hatch hit Mr. Spotted Horse on the top of his hard hat, leaving him with headaches and neck pain.

Mr. Spotted Horse filed an injury report, saying that the rope used to lower the engine compartment hatch had slipped through his co-worker's hand, records show. BNSF employees investigated the accident and Mr. Spotted Horse's injuries, including observing Mr. Spotted Horse's hard hat, taking photos, reviewing surveillance footage and obtaining interviews and statements from Mr. Spotted Horse and his co-worker.

BNSF had a digital recording system in place at the time of Mr. Spotted Horse's accident that recorded 24 hours a day and generated footage that could be seen in real-time in a supervisor's office, court filings show. Unless footage was requested for injury or disciplinary investigations, the video recordings tended to be overwritten with newer footage within 15 to 30 days.

Mr. Spotted Horse requested photo and video footage of his accident about six weeks after it occurred, but BNSF only provided three photos, according to records. While Mr. Spotted Horse's supervisor viewed video footage during his accident investigation, the supervisor said there was no evidence to preserve since the camera closest to Mr. Spotted Horse had not recorded his accident and didn't provide relevant footage.

Mr. Spotted Horse sued BNSF on claims of liability, causation and contributory negligence based on the video's destruction and other accusations, court records show. A Cascade County, Montana, District Court jury ruled in favor of BNSF in December 2013, and Mr. Spotted Horse appealed.

In his appeal, Mr. Spotted Horse argued that the district court erred in its jury instructions by asking jurors to consider whether BNSF “intentionally or recklessly destroyed or concealed evidence” in the case, court filings show. He also argued that BNSF's destruction of the video “resulted in irreparable prejudice and forestalled any means to a fair resolution of his claim,” and that default judgment should have been entered against BNSF.

Video footage inappropriately destroyed

The Montana Supreme Court ruled 5-1 Tuesday that BNSF inappropriately destroyed video footage that could have supported Mr. Spotted Horse's case, and ordered a new trial at the District Court level for Mr. Spotted Horse.

The court majority said the District Court, not BNSF, should have considered whether video footage in Mr. Spotted Horse's case was relevant. They also said it did not matter whether BNSF purposely or inadvertently destroyed video evidence related to Mr. Spotted Horse's accident.

“As its internal policies contemplate, BNSF clearly had the means to collect the video footage by simply sending an email or making a telephone call as it has routinely done for other investigations involving rule violations and workplace injuries,” the ruling reads. “Whether the spoliation of video footage was a litigation tactic or inadvertent as BNSF claims, BNSF's conduct has effectively undermined the 'search for the truth' of what actually transpired on September 13, 2009.”

The Montana high court also found that BNSF improperly benefited from being able to tell District Court jurors that video footage did not show Mr. Spotted Horse's accident, even though the company was not able to show the video.

“In other words, BNSF was allowed to enjoy the benefit of its destruction of the evidence by implying to the jury that Spotted Horse's injury never happened,” the ruling reads.

In her dissent, Montana Supreme Court Justice Laurie McKinnon said BNSF's conduct was “inappropriate,” but that the District Court did not act improperly when it declined to impose sanctions against BNSF.

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