Thursday, May 2, 2019

Superior Court Addresses Adverse Inference Penalty for Spoliation of Video in a Slip and Fall Case


In the case of Marshall v. Brown’s IA, LLC, No. 2588 EDA 2017 (Pa. Super. March 27, 2019 Bowes, J., Stabile, J., and McLaughlin, J.) (Op. by Bowes, J.), the Pennsylvania Superior Court reversed a trial court ruling after finding that the trial court erred in refusing to give an adverse inference instruction based upon the Defendant’s alleged spoliation of videotape evidence in a grocery store slip and fall case.  

According to the Opinion, the Plaintiff allegedly slipped and fell on water in the produce aisle of a ShopRite located in Philadelphia.   The ShopRite employees came to the Plaintiff’s aid immediately after the incident and summoned medical assistance.   The manager also completed an incident report at that time. 

Approximately two (2) weeks after the incident, the store received a letter of representation from the Plaintiff’s attorney requesting that the store retain any surveillance video of the accident and/or the area in question for six (6) hours prior to the incident and three (3) hours after the incident.   The court noted that the letter from the Plaintiff’s attorney also cautioned that any failure by the store to maintain that video surveillance evidence until the disposition of the claim, it would be assumed by Plaintiff that the store intentionally destroyed and/or disposed of the evidence. The attorney also advised the store that it (the store) was not permitted to decide what evidence the Plaintiff would like to review for the case.  As such, the attorney specifically indicated in the letter to the store that “discarding any of the above evidence will lead to an adverse inference against you in this matter.”  

The court confirmed in its Opinion that the Plaintiff’s slip and fall was indeed captured on the store’s video surveillance system. 

However, according to the record before the court, the store decided to preserve only 37 minutes of the video prior to the Plaintiff’s fall and approximately 20 minutes after.   The store otherwise permitted the remainder of the film to be automatically overwritten after thirty (30) days. 

The court additionally noted that, during the course of the trial, defense counsel for the store told the jury in an opening statement that, “it is impossible to tell from the video if there was water on the floor, how it got there or when it got there.”  

At trial, the store’s manager testified that it was the store’s “rule of thumb” to preserve video surveillance from twenty (20) minutes before and twenty (20) minutes after a fall.   The store’s Risk Manager also testified that, in his opinion, the video produced was sufficient to see the defective condition, if it could be seen at all.   He additionally asserted that, since the substance on the floor could not be seen on the retained portion of the video, it “would be a fool’s errand” to go back several hours as requested.  He also asserted that it was impractical and costly to retain the requested six (6) hours of pre-incident video tape.  

At trial, the Plaintiff asserted that the store’s conscious decision not to retain the video evidence constituted spoliation for which the Plaintiff should be given an adverse inference charge to the jury.   

In opposition, the store argued that there was no relevant evidence as the video did not show drops of water on the floor.   The store also asserted that it did not act in bad faith in deleting the additional video requested.  

The trial court initially found that the fact that the video was requested did not, in and of itself, make the video relevant. The trial court also concluded that there was no bad faith on the part of the store. As such, the trial court refused to give the requested adverse inference charge.   However, the trial court did allow the Plaintiff’s counsel to argue to the jury that it should infer from the store’s decision not to retain more of the video prior to the fall supported a conclusion that the video was damaging to the store.   At trial, Plaintiff’s attorney made such an argument to the jury. 

The Superior Court noted that the defense counsel countered by asserting that, under the quality of the video, there was a question as to whether there was any expectation that, if more video had been saved, something else would have been seen particularly when the video showed an obviously small spot of water that could not be readily seen and given that one could not know when it came to be on the floor.  

The jury entered a defense verdict in favor of the store, finding no negligence.

On appeal, one (1) issue was raised for the Superior Court’s review, that being whether the trial court abused its discretion by failing to give a spoliation evidence instruction to the jury at trial.  

After reviewing the current status of Pennsylvania spoliation law and the penalty of an adverse inference, the Superior Court ruled that the trial court should have given such an instruction as the store’s conduct constituted spoliation.   

The court noted that other evidence confirmed that another fifty (50) minutes of time had passed between the last time that a store employee had inspected the area and the time noted on the video.   The court also noted that there was no testimony from anyone at the store that anyone had watched the video for the six (6) hour period prior to the fall to determine that it did not contain any relevant evidence.  Rather, the Superior Court noted that the record confirmed that the store unilaterally determined that there was no relevant evidence on the deleted tape.  

The Superior Court also noted that the trial court’s finding that there was no spoliation because the store did not act in bad faith was based upon an incorrect application of the doctrine of spoliation.   The appellate court noted that spoliation may be negligent, reckless, or intentional.   

The Superior Court additionally emphasized that the party’s good faith or bad faith in the destruction of potentially relevant evidence instead goes to the type of sanction that should be imposed, not whether a sanction is warranted in the first place.  

As such, the court vacated the judgment entered below in favor of the defense and remanded the case for a new trial.  

Anyone wishing to review a copy of this decision may click this LINK.


I send thanks to Attorney Cheryl Wolf of the Feasterville, PA law firm of Rovner, Allen, Robner, Zimmerman, Sigman & Schmidt, as well as Attorney James Hockenberry of the office of Leon Aussprung, M.D., LLC, for bringing this case to my attention. 

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