Nucci v. Target – Social Media Target of Slip-Fall Defense Strategy

While limiting the amount of personal information one posts on social media is good advice in general, it can be especially important for a personal injury plaintiff. laptop1

The reason is this information – from Tweets to snapshots to seemingly benign wall posts or meme-sharing – can be the subject of discovery in your pending civil litigation.

It may seem an invasion of privacy, particularly when your account settings are such that not everyone can see. However, that has not proven an adequate bar to defense recovery of this information when potentially relevant. Facebook in particular has become a target of this type of discovery request, and more and more, judges are granting it, albeit with some stipulations.

Primarily, defendants are looking for evidence indicating your injury was not as severe as previously claimed. If they suspect malingering, they may look to defeat your claim entirely. Usually, though, they look for evidence you are able to complete activities with which you may have indicated you struggle. If your claim includes a prayer for relief/damages for mental pain and suffering, they will cull through posts that appeared even prior to the accident – anything that might suggest your life/marriage/relationships/mental health weren’t as rosy before as you may have stated.

In the recent Florida case of Nucci v. Target, this was the position in which one slip-and-fall accident plaintiff has found herself, with the Fourth District Court of Appeal granting the defense request.

According to court records, plaintiff asserts she suffered serious injuries after she slipped and fell on a foreign substance on the floor of a large chain store. Specifically, she alleged:

  • Bodily injury
  • Pain
  • Medical expenses
  • Physical handicap
  • Emotional pain and suffering
  • Lost earnings/future wages
  • Loss of ability to enjoy life
  • Aggravation of preexisting conditions
  • Permanent and continuing injuries

Prior to her deposition with defense, the defense attorney viewed her Facebook profile – the information that was publicly available – and found it contained 1,285 photos. At her deposition, she indicated she would object to disclosure of her photos. Defense lawyers then examined her profile two days later, and saw it listed just 1,249 photos, suggesting dozens had been deleted.

Target then made a formal request that she not destroy any further evidence on any of her social media platforms, as it was entitled to view that information pursuant to the establishment of her physical and mental condition at issue.

Plaintiff countered that since the profile had been created, the privacy settings barred public access to her account. She asserted a reasonable expectation of privacy on that page, and that defense access to the page would be an invasion of her right to privacy.

Defense filed a motion to compel, and at a hearing, showed photographs of surveillance video in which plaintiff was seen walking with two purses on her shoulder and carrying jugs of water. This appeared to counter her assertion of the severity of her injuries, and defense argued that because this put her physical condition in question, the social media page had relevance to the case that outweighed her privacy concerns.

Initially, the judge found defense request to be overly broad and vague, and denied the motion. However, when defense returned with a narrower request – filtering access to the past two years – trial court granted the motion. The court noted plaintiff did not claim production of any particular photo or material would cause her undue embarrassment, and the surveillance video made their argument especially compelling.

Our Naples injury lawyers recognize the importance of social media in a growing number of clients’ everyday lives. Discuss with your attorney prior to filing the case what kind of relevance the information on your page could have, and how to best avoid posting material that might be misconstrued or damaging.

If you have been injured, contact the Hollander Law Firm at (888) 751-7770 for a free and confidential consultation. There is no fee unless we win.

Additional Resources:

Nucci v. Target, Jan. 7, 2015, Florida’s Fourth District Court of Appeal

More Blog Entries:

Kipling v. State Farm – Sorting Through Insurance Policies, Jan. 9, 2015, Naples Injury Blog