When it comes to traffic cameras, the City of Cleveland is not being straight with us. The City claims that the cameras allow crash data to be analyzed to “enhance public safety.” (“Councilman hopes crash data makes a case for traffic camera,” Cleveland Plain Dealer, September 6, 2014). The City’s policies and practices belie that assertion, as our law firm recently learned.
On April 11, 2014, a client of ours was injured in a collision at the intersection of Woodhill and Woodland. When he came to see us shortly thereafter, he mentioned that there was a traffic camera at that intersection. On April 28th, we completed and returned to the City a Public Records Request seeking a copy of that camera’s videotape, which may have captured the collision, and could help establish fault. On May 6th, we followed up with a letter demanding that tape, and stressing that it is illegal to destroy evidence in a potential civil or criminal action.
Despite numerous phone calls, we received no response until a letter from the City dated July 1st, stating that it was the City’s policy to destroy all video surveillance footage after 30 days, and that now “there is no video footage available.”
We filed suit against the City of Cleveland for spoliation of evidence, which is actionable under Ohio law. In response, Connor P. Nathanson, Assistant Director of Law for the City wrote back that “we confirmed that the City of Cleveland did not have any traffic cameras at the intersection of Woodland Avenue and Woodhill Road on that date. As such, the City of Cleveland was never in possession of any video or photographic recordings” of our client’s crash. Nathanson further requested that we dismiss our lawsuit.
We therefore obtained photographs of a camera affixed to a utility pole at that very intersection. Confronted with that evidence, Nathanson admitted in an e-mail that his prior representation was untrue: “there is a video camera operated by the City’s Department of Public [S]afety, which was in use on April 11, 2014. My apologies for the error.”
Apparently untroubled by its conduct, the City has now moved to have the lawsuit dismissed, claiming that it is immune from liability for destroying the videotape, even though it was on notice that the video was evidence in a potential civil action. And while our Cuyahoga County Appellate Court has never directly addressed the issue, at least one other Ohio Court of Appeals has ruled that municipalities are legally protected from suit for spoliation of evidence.
Setting aside the questionable ethics of the City’s Law Department for misrepresenting the existence of the camera, this episode is troubling for many reasons. First, these cameras certainly cannot be used to determine high accident intersections if the tapes are quickly destroyed. Second, if the City is going to continue utilizing these cameras, it must be compelled to save the data indefinitely. With the vast storage capabilities of modern computers or in the “cloud,” there simply is no justification for destroying evidence of driver negligence, or even criminal misconduct. Such a requirement is particularly compelling here, where the City was on actual notice of the collision well before the 30 day period had run, but chose to blithely destroy the evidence anyway.
Additionally, the entire legal system collapses if lawyers, especially those representing public institutions, can misrepresent the truth without consequences. Our client has now been victimized twice, once by a negligent driver, and again by the City which destroyed a tape and then tried to cover up its conduct.
Finally, the City should not be permitted to hide behind Sovereign Immunity in such instance. That outdated concept that the King should be free to act without civil responsibility, was abolished by the Ohio Supreme Court, only to be re-imposed by the Ohio Legislature. Surely, even our conservative Legislature never intended to shield a municipality from the type of outrageous conduct encountered here. If not addressed, cities will have carte blanche to destroy the tapes from any camera, even ones which depict police or other misconduct. Justice demands that such a pattern of misconduct not go unchallenged.
David I. Pomerantz is a Cleveland area Trial Attorney.
