Tuesday, April 7, 2015

Two Recent Slip and Fall Decisions Addressing Constructive Notice/Spoliation Issues




In Rodriguez v. Kravco Simon Co., 2015 Pa. Super. 41, 2291 EDA 2014 (Feb. 20, 2015 Strassburger, Allen, Olson, J.J.)(Op. by Strassburger, J.), the Pennsylvania Superior Court reversed the entry of summary judgment in a slip and fall case as issues of fact existed on whether or not the Plaintiff met the burden of proving notice on the part of the Defendant of the allegedly dangerous condition.

The court ruled in this fashion even though there was no evidence of how long the spill had been present before the Plaintiff came along and fell.  The court noted that issues of fact were raised by the fact that the defendant’s maintenance records for the date in question were missing. 
Moreover, as there was therefore an open question in the matter about spoliation relative to the missing maintenance records, and whether an adverse inference in favor of the Plaintiff's case might be proper, summary judgment was found to be precluded on the issue of constructive knowledge.  The court additionally noted that there was no requirement that spoliation be resolved before summary judgment to be applicable.

Anyone wishing to review this Rodriguez decision may click this LINK.

I send thanks to Attorney James Beck of the Philadelphia office of Reed Smith for bringing this case to my attention.  I highly recommend that you check out Attorney Beck's award-winning and nationally recognized blog, the Drug and Device Law Blog, which can be accessed at this LINK.

 
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In its recent decision in the case of Harrell v. Pathmark, 2015 U.S. Dist. Lexis 23154 (E.D. Pa. Feb. 26, 2015 Pratter, J.), the Eastern District Federal Court of Pennsylvania granted  summary judgment in a slip and fall case due to a Plaintiff's inability to prove actual or constructive notice of the Defendant of an allegedly dangerous condition. 
In so ruling, the court rejected the Plaintiff's spoliation claim in a case where the store routinely saved over its surveillance tapes.
The court noted that, in this matter, evidence was presented that the store's surveillance camera tapes of the area were routinely reused.  Moreover, there was no evidence that the surveillance camera(s) at issue captured the Plaintiff’s fall.  The record also established that the cameras may not even have been pointed in the necessary direction.
As such, the court ruled that, under circumstances presented in this case no adverse inference in favor of the Plaintiff from an alleged spoliation of evidence arises if the evidence was lost, accidentally destroyed, or where the failure to produce it is otherwise properly accounted for -- in this case, the court noted that re-recording of videotapes in the usual course of business is not bad faith.  In this regard, the court also pointed out that a spoliation sanction requires more than proof of mere negligence.
The court also notably ruled that the mere fact that a  fall in a store does not mean that litigation is imminent or otherwise serve to put the store on notice to save the video tapes.  In this case, the Plaintiff did not put defendant on notice of suit at or around the time of her fall.

Anyone wishing to review this decision may click this LINK.

I send thanks to Attorney James Beck of the Philadelphia office of Reed Smith for bringing this case to my attention.  I highly recommend that you check out Attorney Beck's award-winning and nationally recognized blog, the Drug and Device Law Blog, which can be accessed at this LINK.



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