Monday, September 25, 2023

Federal Court Finds Spoliation of Video Surveillance of Slip and Fall in Store

In the case of Heagy v. Burlington Stores, Inc., No. 2:20-CV-02447-CMR (E.D. Pa. Sept. 6, 2023 Rufe, J.), the court denied a motion against a Defendant store that was based, in part, on the Defendant store’s alleged spoliation of video surveillance evidence regarding the subject slip and fall incident.

According to the Opinion, on the day of the incident, a cleaning crew was cleaning the floors earlier that morning, as a result of which there was a wet mat near the entrance area.

About ten (10) minutes before the Plaintiff entered the store, the store employee nearly slipped and fell in the area. The Plaintiff then entered the store and slipped and fell on the tile floor after stepping from the mat, which the parties agreed was soaking wet.

Thereafter, the Plaintiff contacted a lawyer and, two (2) weeks after the fall, that attorney sent Burlington a letter confirming his representation of the Plaintiff and requesting the preservation of security/surveillance video of the incident. The Plaintiff’s attorney requested that the entire unedited video be preserved as recorded for a period of twenty-four (24) hours before and twenty-four (24) hours after the subject incident.

A few days thereafter, the adjuster for Burlington’s third party administrator contacted Plaintiffs’ counsel and stated that the store cannot produce forty-eight (48) hours of footage, but that the footage would be preserved.

According to the Opinion, two (2) days before that communication, the adjuster had submitted a request to Burlington to save video from thirty (30) minutes before the incident to thirty (30) minutes after the incident.

Ultimately, Burlington’s loss prevention associate preserved the footage only of the customer, which amounted to three (3) minutes prior to the fall and seventeen (17) minutes after the fall.

In this regard, the court was addressing a Motion for Summary Judgment by Burlington relative to the Plaintiff’s punitive damages claims along with Motion for Summary Judgment by the subcontractor Defendants who argued that Burlington’s negligence was an intervening and superseding cause of the Plaintiff’s fall and that Burlington’s spoliation of evidence warranty summary judgment in favor of the subcontractor Defendants.

The court denied all motions so that the issues could be addressed later in terms of what spoliation sanctions were warranted.

The court found that Burlington’s action of only preserving only a very limited amount of the video evidence constituted spoliation as there was no basis to conclude that Burlington’s failure to preserve the pertinent video evidence was the result of any inadvertence, routine practice, or accident. The court noted that the evidence in the record demonstrated that Burlington spoliated the pertinent video evidence for the purpose of undermining the integrity of the litigation and that Burlington could not now benefit from its own misconduct.

The court found that the Burlington spoliation did not require a dismissal of the claims against the subcontractor. The court also noted that the finding of the entitlement to a spoliation adverse inference or an award of litigation expenses was premature at the present juncture of the case. Accordingly, all arguments regarding spoliation sanctions were denied without prejudice. The court granted the party’s leave to file appropriate Motions for Sanctions.

Anyone wishing to review a copy of this decision may click this LINK.  The Court's companion Order can be viewed HERE.

Source: Article - “Major Slip-Up: Pa. Judge Rules Burlington Destroyed Relevant Evidence in Slip-and-Fall Suit, But Holds Off on Sanctions,” By: Riley Brennan of the Pennsylvania Law Weekly (Sept. 8, 2023).

Source of image:  Photo by Alex Knight on

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