Third Circuit Affirms Trial Court's Giving Plaintiff the Boot in a Shoe Store Slip and Fall Case

In its non-precedential decision in the case of Liveshitz v. Designer Brands, Inc., No. 23-3082 (3d Cir. Jan. 13, 2025 Matey, J., Shwartz, J., and McKee, J.) (Op. by Matey, J.), the Third Circuit Court of Appeals affirmed the entry of summary judgment in a slip and fall case.

In this case, the Plaintiff alleges that she slipped and fell on a clear and odorless substance on the restroom floor of a store.

The Third Circuit reaffirmed the well-settled rule that a premises liability case requires that a defendant either created the harmful condition that caused the plaintiff to fall or had actual or constructive notice of that condition a sufficient time prior to the event to enable the defendant to address the condition.

Here, the court found that whether the Defendant exercised reasonable care was immaterial because there was no duty owed in the first place. The court found that the Plaintiff had failed to establish actual or constructive notice of the condition on the part of the Defendant.

The court also ruled that the Plaintiff's spoliation of evidence argument failed to create a genuine issue of material fact where there was no evidence of any actual or constructive notice on the part of the Defendant of the alleged condition that allegedly caused the Plaintiff to fall.  

The court ruled that a jury could only speculate on how long the substance at issue was on the floor before the Plaintiff encountered it.

As such, the trial court’s entry of summary judgment was affirmed.

Anyone wishing to review a copy of this non-precedential decision may click this LINK.

I send thanks to Attorney James M. Beck of the Philadelphia office of the Reed Smith law firm for bringing this case to my attention.

Trial Court Grants Discovery Sanctions After Med Mal Defendant Led Plaintiff on Wild Goose Chase

In the case of Lapteff v. Abington Mem. Hosp., No. 2021-CV-00536 (C.P. Montg. Co. Nov. 15, 2024 Saltz, J.), the court entered an Order in favor of a Plaintiff in a medical malpractice claim on issues regarding alleged spoliation of evidence and discovery sanctions.

In this medical malpractice case, the Plaintiff filed a Motion for Sanctions relative to the Defendant hospital’s alleged spoliation of an audit trail for electronic medical records.

The court granted the motion in part by ordering the Defendant to pay the Plaintiffs’ attorney’s fees and costs in seeking the production of an audit trail after the Defendant only belated explained that the discovery requested was unnecessary because pertinent medical record updates were reflected on the records themselves.

The court otherwise denied the Plaintiff’s request for an entry of judgment in its favor given that the spoliation committed by the Defendant did not serve to prejudice the Plaintiffs’ ability to prove their case. This was because the details of any after-the-fact changes to the Plaintiff’s medical records were confirmed to be in the medical records themselves.

Nonetheless, the court found that the Plaintiffs were prejudiced by being led on a wild goose chase by the Defendant which had originally simply maintained that it had no responsive documents in its possession when the Plaintiff originally requested the medical record audit trail. At no time did the Defendant, early on, inform the parties or the court that an audit trail was not required because any changes would be noted on the face of the medical records themselves. This revelation was only made after the court invited the Plaintiffs to file a Motion for Sanctions.

The court noted that, whether the Defendant’s conduct was intentional or not, a timely disclosure would have saved the parties and the court from considerable needless effort.

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


Source: The Legal Intelligencer Common Pleas Case Alert. (Jan. 8, 2025).

Source of image:  Photo by Cottonbro Studios on www.pexels.com.

Summary Judgment Granted in Case Where Plaintiff Did Not Know What Caused Her to Fall

What caused you to fall?

In non-precedential decision in the case of Harkins v. Three Monkeys Croyden, Inc., No. 637  EDA 2023 (Pa. Super. Aug. 2, 2024 Olson, J., Stabile, J., and McLaughlin, J.) (Op. by Olson, J.), the court affirmed the entry of summary judgment in a premises liability fall down case.

According to the Opinion, the Plaintiff denied knowing what caused her to fall at a brew pub and offered no other factual evidence in support of her claims presented.

According to the Opinion, the Plaintiff confirmed that there was no food or liquid on the floor that could have caused her to fall.  Although she initially suggested that her fall may have been caused by uneven floor tiles, or an uplifted section of a floor mat, or a wave in a floor mat, she confirmed that she was not certain.  

The Plaintiff then testified that uneven floor tiles did not cause her to fall and that perhaps she instead fell due to the heel of her shoe catching a rubber edge of a floor mat.  The Plaintiff confirme that she did not know how her heel might have caught the rubber edge of a mat or whether or not the edge of that rubber mat was sticking up at the time she allegedly encountered it.

The court additionally noted that the trial court had properly precluded the Plaintiff’s liability expert because that expert’s opinion expressed no specialized knowledge, failed to explain the expert’s conclusions with specific references to cited standards, and where the expert failed to offer opinions specifically tailored to the facts established by the record. 

With regards to spoliation issues raised by the Plaintiff in this matter, the court indicated that the record revealed that no notice was given to the Defendant about the need for the videos until after the surveillance videotapes were routinely overwritten.

The court emphasized that the duty to preserve evidence is not boundless.

It was also emphasized that a deleted video causes little prejudice to a litigant who has no proof of liability such as was the case in this matter. The court noted that absent any affirmative evidence of liability, spoliation allegations in and of themselves cannot take the place of carrying the Plaintiff’s burden of proof on the liability issues presented.

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


I send thanks to Attorney James M. Beck of the Reed Smith law firm in Philadelphia for bringing this case to my attention.

Eastern District Court Finds Spoliation of Evidence Relative to Failure To Preserve Video After Plaintiff's Attorney Requested Preservation

In the case of Peronace v. City of Philadelphia, No. 2:23-CV-03943-KSM (E.D. Pa. April 16, 2024 Marston, J.), the court denied the city’s Motion for Summary Judgment in a prisoner’s rights case involving Monell issues.

According to the Opinion, the Plaintiff alleged that he had sustained multiple seizures while incarcerated and that the correctional officers delayed in providing him with medical assistance.

As part of this decision, the court addressed a Motion for Sanctions filed by the Plaintiff under an allegation that the prison officials intentionally failed to preserve video footage from outside of the prisoner’s cell.

The court reviewed this motion under F.R.C.P. 37(e) and found that, because the city should have known to preserve the video footage after receiving correspondence from an attorney for the Plaintiff to do so, and because there was no evidence that the city took any such steps, let alone reasonable steps to preserve the video footage, the court found that the videos were spoliated.

In terms of what sanction to impose, the court reviewed the factors set out under Rule 37(e) and ruled that, since it found that the city intentionally allowed relevant video footage to be overwritten by the video surveillance system, and considering the prejudice to the Plaintiff, the court fashioned a sanction and ruled that a jury may be instructed that the Defendant intentionally failed to preserve the disputed video evidence and that, therefore, the jury may presume that the lost video footage was unfavorable to the Defendant.

In a different portion of this Opinion, the court denied the city Defendant’s Motion for Summary Judgment after finding that issues of fact and testimonial differences existed on the case presented.

However, after finding that the Plaintiff did not submit evidence of any custom or policy of correctional officers violating inmates’ constitutional rights in the ways that the officers allegedly violated Plaintiff’s rights in this case, the court found that the city could not be held liable under the policy or custom prong of Monell. However, the court did find that the case against the city based upon an alleged failure of the city to supervise its correctional officers could proceed.

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


I send thanks to Attorney Jeffrey D. Schmidt of the Feasterville, PA law firm of Rovner, Allen, Rovner, Zimmerman and Schmidt for bringing this case to my attention.

Defendant's Motion for Sanctions Regarding Inability To Complete Autopsy Denied by Court

In the case of Estate of Eddy v. Saber Healthcare Group, LLC, No. 2022-CV-1553 (C.P. Dec. 15, 2023 Nealon, J.), the court addressed a motion by medical malpractice Defendant for spoliation sanctions. In this case, the decedent’s son filed a wrongful death lawsuit against a nursing care facility alleging that his mother fell and suffered blunt forced trauma to her head due to the facilities negligence, which negligence result in the decedent’s death nine (9) days after that injury. The Plaintiff also alleged that the facility misrepresented that the decedent died from “end-stage dementia” rather than blunt force trauma.

The son maintained that the facility never advised him of his mother’s fall down event and/or head injury prior to her death and that, upon viewing his mother’s head wound and bandaging at the funeral home, which did not correlate with the cause of death explanation provided by the facility, the son contacted an attorney who recommended that the son have an autopsy completed, which was done.

The forensic pathologist who completed the autopsy authored a report identifying blunt force trauma of the head, dehydration, and malnutrition as pathological diagnoses. The decedent was then cremated shortly thereafter.

During the course of this litigation, certain Defendants filed the Motion for Spoliation Sanctions seeking to have the case dismissed with prejudice or, in the alternative, to preclude any autopsy evidence and to have an adverse inference instruction issued based upon the son’s alleged deliberate spoliation of evidence by way of cremating his mother’s body which thereby deprived the facility of its own opportunity to conduct its own autopsy.

After reviewing the record before him, Judge Nealon noted that a litigant has a duty to preserve relevant evidence if that party knows that litigation is pending or likely and it is foreseeable that spoliation of that evidence will prejudice the opposing party.

Here, the court found that the wrongful death claim against the facility did not become likely until the forensic pathologist authored the autopsy report in March of 2021, almost two (2) months after the mother’s body had been cremated.

The court noted that no evidence was offered during the evidentiary hearing on the motion which suggested that the son or his attorney knew of the forensic pathologist’s autopsy conclusions when the mother’s body was cremated.

It was additionally noted that credible evidence was presented at the hearing which established that the facility had opportunities to examine and inspect the mother’s body and head injuries, or arguably to request an autopsy, before it released the decedent’s body the funeral home after the facility had certified that the decedent had died from “end-stage dementia.”

Judge Nealon otherwise noted that there also remained other relative evidence available to the defendant facility to dispute or otherwise challenge the son’s claim that his mother instead died from blunt force trauma to the head, dehydration, and malnutrition.

Therefore, after consideration of the alleged degree of fault on the part of the son and his attorney in connection with the spoliation of the decedent’s corpse, the extent of any alleged resulting prejudice to the defendant facility, and the facility’s alleged ability to use other existing evidence to remedy any claimed disadvantage, the Motion for Spoliation Sanctions was denied.

Judge Nealon additionally ruled that the facility would be permitted to present evidence at trial pertaining to the spoliation of the evidence at issue so that the jury may assess that evidence whatever weight the jury deem it was entitled to receive.

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

Plaintiff's Failure to Present Sufficient Evidence of Notice in a Slip and Fall Case Leads to Entry of Summary Judgment

In the case of Livshitz v. Designer Brands, Inc., No. 22-CV-3355 (E.D. Pa. Nov. 14, 2023 Murphy, J.), the court granted summary judgment in a slip and fall case after finding that the Plaintiff failed to present any evidence to suggest that the landowner had actual or constructive notice of an allegedly dangerous condition.

The court noted that allegations of a lack of inspections by the landowner do not amount to affirmative evidence on the issue of notice.

The court noted that, while a Defendant may have failed to follow company procedures may be evidence of a breach of a duty, there must first be a duty of care owed and, according to this court, a duty of care requires actual or constructive notice of an allegedly dangerous condition.  Given that no evidence of notice was presented, summary judgment was granted.

This decision is also notable in that court rejected the Plaintiff’s allegations of video tape spoliation as being irrelevant because there was no evidence that there were any surveillance cameras inside the restroom stall where the Plaintiff allegedly fell.

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


I send thanks to Attorney James M. Beck of the Philadelphia office of the Reed Smith law firm for bringing this case to my attention.

Source of Image:  Photo by Galen Crout on www.unsplash.com.

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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 www.unsplash.com.

Motion for Summary Judgment Based on Spoliation Argument Denied

In the case of Hein v. Master Builders Solution Admixtures U.S., LLC, No. 21-1116 (W.D. Pa. June 22, 2023 Hardy, J.), the court denied a Defendant’s Motion for Summary Judgment based upon a spoliation of evidence argument.

In this case, the court found that the record revealed that the Plaintiff had removed all of the allegedly defective building product from the property and had disposed of that product, except for one (1) bucket of material that was then later lost. All of this occurred before the Plaintiff gave the Defendant notice or opportunity to inspect.

As a result, the Defendant claimed that it was now impossible to determine if the Defendant had manufactured the now missing product.

The court noted that, although two (2) elements of spoliation were established, i.e., control of the evidence and relevance, there was no evidence revealed, to date, to conclusively establish the remaining two (2) factors, i.e., the actual withholding of evidence and the foreseeability that the evidence was discoverable.

According to the court, it was the Plaintiff’s claim that, at the time of the removal and the disposal of the product in question, the Plaintiff was not contemplating the lawsuit. The Plaintiff additionally claimed to have left one (1) bucket of the product with the buyers of the property after notifying the Defendant of the claim. The court noted that what had happened to that last bucket thereafter was not clear.

The court denied the Defendant's Motion for Summary Judgment based upon spoliation but allowed the Defendant to renew its argument after a full record was developed in the case.

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

I send thanks to Attorney James M. Beck of the Philadelphia office of the Reed Smith law firm for bringing this case to my attention.

Source of image:  Photo by Lucas Van Oort on www.unsplash.com.

Court Precludes Evidence of Prior Slip and Falls At Premises Liability Trial

In the case of Kunsman v. Wawa, Inc., No. 2017-23859 (C.P. Montg. Co. June 2, 2023 Saltz, J.), the court issued a Rule 1925 Opinion requesting that the Superior Court affirm the verdict in favor of the Defendant in a slip and fall case.

According to the Opinion, the Plaintiff allegedly slipped and fell on a yellow-painted surface in the parking area at the Defendant’s store.

One of the issues on appeal was the trial court’s ruling on the Defendant’s Pre-Trial Motion In Limine to prevent the Plaintiffs from offering evidence of prior lawsuits or claims against the Defendant. The subject of that motion was a list of fourteen (14) prior claims, each of which involved in a slip and fall accident on yellow traffic paint, which information was provided to the Plaintiff by the Defendant in discovery.

During depositions, the Defendant’s Senior General Liability Specialist indicated that only one (1) of the fourteen (14) claims was at the same store where the Plaintiff fell.

In the end, the trial court authorized the admission of the evidence of that particular claim, but not the others.

In this Opinion, the court noted that the Plaintiff did not sustain their burden of proving that the claims of the other prior incidents on the list, other than the incident that occurred at the same store, were “sufficiently similar” under the “sufficiently similar circumstances” test.   The trial court requested the Superior Court to affirm its decision in this regard.

Another issue in this case was the Plaintiff’s objections to the jury instructions relative to the failure of the Defendant to produce any video footage of the subject incident.

At trial, the assistant general manager of the store testified that he sent to the Defendant’s corporate headquarters surveillance video camera recordings that he thought had captured the accident.

However, the store’s general manager then testified that there were no cameras in a place that had a view of the site of the incident.

Prior to trial, the court had directed the Defendant to provide the Plaintiff with all videos from the date of the accident taken at any location at the store.

The Defendant did so and none of the videos included the site of the accident.

At trial, the Plaintiff requested that the jury be provided Suggested Standard Jury Instructions §5.60, addressing spoliation of evidence. The trial court denied that request and instead instructed the jury under §5.30, regarding the failure to produce evidence.

As noted above, in the end, the jury found that the Defendant store was not negligent.

As part of its appeal, the Plaintiff stated that the trial court erred by instructing the jury on the failure to produce evidence standard rather than the spoliation of evidence jury instruction.

The trial court noted that the Plaintiff’s argument in this regard should not be upheld as the jury instruction on the failure to produce evidence was substantially the same as the instruction regarding spoliation of evidence. The court stated that the Plaintiff did not demonstrate any prejudice from the use of the instruction actually provided to the court. The court also noted that it was within its discretion in deciding which instruction to use. 

Here, in light of the conflicting evidence about the existence of any applicable video recording, the court noted that the jury was properly allowed to draw an adverse inference if it found that the Defendant had possessed a video but had not produced it.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (July 4, 2023).

Judge Nealon of Lackawanna County Addresses Whether Summary Judgment is Appropriate Sanction for Alleged Spoliation

In the case of McClafferty v. Scranton Electric Heating, No. 2019-CIVIL-2216 (C.P. Lacka. Co. Aug. 5, 2023 Nealon, J.), the court addressed issues with regards to the alleged spoliation of evidence.

A carpenter instituted this personal injury action against a subcontractor after he was burned in a fire caused by a gas tank provided by the subcontractor at the work site, and the subcontractor joined the gas tank supplier as an Additional Defendant. 

The gas tank supplier filed a Motion for Summary Judgment seeking to dismiss the joinder action based upon the subcontractor’s alleged spoliation of evidence in failing to preserve the subject gas tank.

Judge Terrence R. Nealon
Lackawanna County

Judge Nealon confirmed that, in determining whether a sanction is warranted for the spoliation of evidence, the court shoulder consider: 

(1) the degree of fault of the party who altered or destroyed the evidence; 

(2) the degree of prejudice suffered by the opposing party; and 

(3) the availability of a lesser sanction that will protect the opposing party’s rights and defer future similar conduct. 

The court noted that the first prong, which addresses the fault of the spoliating party, requires consideration of the offending party’s duty or responsibility to preserve the relevant evidence or lack of any such duty. 

Judge Nealon also noted that the destruction of potentially relevant evidence determines whether and what type of sanction should be imposed, not whether spoliation occurred.

Since the subcontractor’s vice-president testified that it was “more than likely” that the gas tank “was returned” to the supplier after the fire, genuine issues of material fact existed as to whether the subcontractor could be characterized as the spoliator of the gas tank. 

The court noted that the entry of summary judgment is the most extreme sanction for spoliation, and, at a minimum, requires proof that the party actually altered or destroyed the evidence, or authorized or directed its destruction or alteration. 

Judge Nealon ultimately ruled that, although the presiding trial judge would later determine whether an adverse inference instruction under Pa. SSJI (Civ) §5.60 (5th Ed.) is warranted under the circumstances presented, at this stage of the matter, the entry of summary judgment as a spoliation sanction was found to be inappropriate by the court.

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

Superior Court Affirms Entry of Judgment Against a Negligent Spoliation of Evidence Claim Cloaked As A Promissory Estoppel Claim

 In the case of Erie Ins. Exch. v. United Services Auto. Assoc., 2022 Pa. Super. 207 (Pa. Super. Dec. 6, 2022 Olson, J., Colins, J., Dubow, J.) (Op. by Colins, J.), the Pennsylvania Superior Court ruled that there is no recognized cause of action in Pennsylvania for negligent spoliation of evidence.

In this matter, in which involved fire damage claims and the right to conduct an investigation as to the cause of a fire, the court granted summary judgment for the Defendant on a promissory estoppel claim which claim was brought in an effort to recover damages for the negligent spoliation based upon an agreement to indefinitely preserve evidence.   

The Superior Court affirmed the trial court's finding that the promissory estoppel claim was essentially disguised as a negligent spoliation of evidence cause of action. Since such claims are not recognized in Pennsylvania, the Court affirmed the entry of judgment against this promissory estoppel claim.

While a Link to the decision was previously provided in this post, this post was updated once that Opinion was withdrawn by the Court in light of the fact that the case was moving on to an en banc consideration.

Source:  “Court Summaries.”  by Timothy L. Clawges in the Pennsylvania Bar News (Jan. 2, 2023).

UPDATE: This decision was withdrawn by the Superior Court under an Order dated February 9, 2023 when it granted a reargument en banc.

I send thanks to Attorney Brook T. Dirlam of the Pittsburgh, PA office of Thomas, Thomas & Hafer for letting me know this update.

Spoliation of Surveillance Video in Store Serves to Defeat Store's Motion for Summary Judgment in Slip and Fall Case

In the case of Defrehn v. TJX Co., No. 20-5762 (E.D. Pa. July 26, 2022 Robreno, J.), the court denied summary judgment in a premises liability case. 

The court noted that the record revealed that the Defendant failed to retain surveillance video that could have established notice on the part of the Defendant of the spill upon which the Plaintiff allegedly slipped and fell. As such, the court found that the Plaintiff was entitled to adverse inference that the video was not preserved because it contained evidence that was unfavorable to the Defendant.

The court noted that this adverse inference served to defeat the Defendant’s Motion for Summary Judgment.

The court additionally generally noted that, while footprints through a spill, standing alone, are not sufficient to preclude summary judgment, in this case the Plaintiff testified that she not only saw footprints through the spill but that there was a mop, bucket, and a "Wet Floor" sign in the area prior to the Plaintiff's fall.

As such, the Plaintiff asserted that the Defendant had taken remedial steps, which created an inference of notice.  The court agreed and found that this evidence could lead a reasonable jury to conclude that the Defendant had notice of the condition prior to the Plaintiff's fall and failed to remedy it.  The court found this to be an additional basis upon which to deny the Motion for Summary Judgment.

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

I send thanks to Attorney James M. Beck of the Philadelphia office of the Reed Smith law firm in Philadelphia, PA for bringing this case to my attention.

Source of image:  Photo by Nothing Ahead on www.pexels.com.

Federal Court Confirms That There is No Recognized Cause of Action for Spoliation of Evidence But...

In the case of Atlantic States Ins. Co. v. Copart, Inc., No. 5:22-CV-1177 (E.D. Pa. June 30, 2022 Leeson, J.), the court denied in part, the Plaintiff insurance company’s Motion for Summary Judgment on a claim of a breach of duty on the part of Copart to preserve a vehicle.

In this matter, a worker's compensation carrier, had paid over a million dollars to compensate an injured employee.  The employee had been involved in an accident while driving a Mack truck.  By way of subrogation, the compensation carrier brought suit against several alleged tortfeasor to recover the monies the carrier had paid out to the injured employee.

The truck at issue had been sold by Copart before the compensation carrier could complete an expert inspection of the vehicle.   As such, the carrier had to discontinue its action against the tortfeasors.

The carrier then sued Copart for the damages the carrier suffered from having to discontinue the action against the tortfeasors.  The Defendant responded with a Motion to Dismiss.  

The court noted that the Pennsylvania Supreme Court has not recognized a cause of action for negligent spoliation of evidence.

However, Judge Leeson held that, while Pennsylvania law does not impose on third parties a duty to preserve evidence, the Plaintiff could still have a cause of action for negligence generally if the court found that another duty, either contractual or otherwise, to maintain the truck involved in the accident was implicated by the facts of the case.

As such, the court denied, in part, the Plaintiff’s Motion for Summary Judgment on this basis in this matter.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (July 21, 2022).

Judge Nealon of Lackawanna County Denies Request for Spoliation Sanction Relative to Cell Phone Records

In the case that keeps on giving, Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas issued yet another notable decision in the case of Barbarevech v. Tomlison, No. 18-CV-4821 (C.P. Lacka. Co. March 11, 2022 Nealon, J.). This time, the court addressed a Motion In Limine filed by the Plaintiff for spoliation sanctions in the form of an adverse inference charge and preclusion of testimony and evidence relating to the failure to retain Defendant, Nicole Tomlinson’s cell phone records.

In issuing his decision, Judge Nealon reviewed the current status of the law on spoliation at evidence and the discretion of trial court judges to impose a range of sanctions based upon the circumstances presented.

Citing to the famous spoliation cases of Schroeder v. Com. Dept. of Transp., 710 A.2d 23, 27 (Pa. 1998) citing Schmid v. Milwaukee Elect. Toll Corp., 13 F.3d 76, 79 (3d. Cir. 1994), Judge Nealon noted that, in determining whether a sanction is warranted for the spoliation of evidence, the court should consider: (1) the degree of fault of the party who altered or destroyed the evidence; (2) the degree of prejudice suffered by the opposing party; and (3) the availability of a lesser sanction that will protect the opposing party’s rights and deter future similar conduct.

Interestingly, in footnote 2 of the Opinion, Judge Nealon cited to my article entitled “New Wine In An Old Bottle: The Advent of Social Media Discovery in Pennsylvania Civil Litigation Matters,” 60 Vill. L.Rev. Tolle Lege 31, 44 (2015) for the proposition that parties typically utilize a litigation strategy of securing a ‘litigation hold’ court order against an opposing party in a lawsuit in order to prevent that other party from deleting evidence.

After applying the law of spoliation to the case presented, the court noted that neither of the Defendants at issue ever had custody of the cell phone records in question prior to their destruction. 

It was also emphasized that neither party had obtained or even requested a court order directing that the cell phone records be preserved. 

Nor was there any evidence that the Defendants knew that the cell phone records would be deleted under a retention policy of the cell phone owner’s carrier. 

Moreover, Judge Nealon indicated that, since there was no evidence that the Defendant’s cell phone was in use at the time of the subject accident, and given that there was no eyewitness testimony that the cell phone was being held or used by the cell phone’s owner, the court found that it could not be reasonably concluded that the cell phone’s owner had any affirmative duty to unilaterally contact her cell phone carrier to direct that the carrier preserve her cell phone records.

As such, based upon the record before the court, Judge Nealon found that the Defendant’s could not be characterized as the destroyers of the cell phone records in question. It was also reiterated that neither of the Defendants at issue had any knowledge that the cell phone records would have been deleted. As such, the court ruled that a spoliation sanction was not warranted.

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

Source of Image:  Photo of cell phone by Jonas Lee on Unsplash.com.

No Summary Judgment Allowed Based on Lack of Notice in Slip and Fall Case Where Surveillance Tape Spoliated

In the case of Nixon v. Family Dollar Stores, No. 4:20-CV-00404 (M.D. Pa. May 20, 2021 Brann, J.), the court found that a claim of spoliation precluded the entry of summary judgment in a slip and fall case.

According to the Opinion, the court found that the Defendant spoliated surveillance camera tapes. The court found that this allowed for a permissive adverse inference jury instruction.

Based on the possibility of a permissive adverse inference, the court found that summary judgment was precluded with respect to any argument regarding notice of the alleged dangerous condition.

Anyone wishing to review a copy of this decision may click this LINK.  The companion Order by Judge Brann can be viewed HERE,

I send thanks to Attorney James M. Beck of the Philadelphia office of the Reed Smith law firm bringing this case to my attention.

Source of image:  Photo by Justin Buisson on Unsplash.com.

   

Spoliation Claim Rejected in Fire Loss Case

In the case of State Farm Fire and Cas. Co. v. Cohen, No. 19-1947(E.D. Pa. Sept. 8, 2020 Quinones Alejandro, J.), the court granted summary judgment in favor of the Defendant in a case arising out of an appliance fire in a home. 

One of the issues addressed in this case was an allegation of spoliation of the product by the Defendant. The court rejected this claim in a case where the product, which was allegedly poorly maintained by the Defendant and allegedly led to the fire, disappeared. 

The court stated that there was no dispositive evidence in the record that the Defendant, as opposed to the Plaintiff, caused the product to go missing. Nor was there any evidence of an intent on the part of the Defendant to destroy any evidence. The court additionally noted that mere negligence with regards to a disappearance of evidence does not support a spoliation argument. As such, the request for an adverse spoliation inference against the Defendant was not granted.

The court also went on to rule that, without either the production or an adverse inference, the Plaintiff was unable to prove causation with respect to the fire. It was noted that no expert evidence was provided with regard to any alleged poor maintenance of the product. 

The court noted that negligence claims based upon damages caused by appliance fires generally require expert opinion with respect to the issue of causation. The court otherwise indicated that lay witness testimony that most of the fire damage appeared to be near where the product had been located is insufficient to meet the burden of proof on causation. 

For these reasons, summary judgment was granted in favor of the defense.

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

I send thanks to Attorney James M. Beck of the Philadelphia office of the Reed Smith law firm for bringing this case to my attention.

Summary Judgment Denied in Slip and Fall Case Where Questions Abound Regarding Preservation of Video Evidence From Store

In the slip and fall case of Charoff v. Marmaxx Operating, No. 18-4712  (E.D.Pa. April 7, 2020 Jones, J.), the court ruled that the Plaintiff was entitled to an adverse inference during motion for summary judgment proceedings due to TJMaxx's inability to produce video surveillance involved in the matter.  The court also denied the Defendant store's Motion for Summary Judgment.

According to the Opinion, the Plaintiff had previously contacted the store's carrier and requested that the video evidence be preserved.  The evidence before the court was that the standard practice was that the carrier would then contact the store to request that any videos be preserved.

The Defendant argued that there was no video surveillance as the location where the Plaintiff allegedly fell was allegedly in a "blind spot."  

Given the issues of fact raised, the court denied the motion for summary judgment.

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

Source: Article: "Judge Comes Down on TJMaxx for Allegedly Destroying Evidence in Injury Case" in the Pennsylvania Law Weekly by P.J. D'Annunzio (April 8, 2020).

Claim of Spoliation of Video in Slip and Fall Case Rejected

In the case of Pace v. Wal-Mart Stores East, LP, No. 18-3313(3d Cir. Jan. 28, 2020 Chagares, J., Greenaway, J., Greenberg, J.) (Op. by Chagares, J.)[Non-Precedential], the court affirmed the entry of summary judgment in favor of the defense in a slip and fall case.

Notably, the court affirmed the lower court’s ruling that the Plaintiff had failed to establish that the Defendant store had spoliated any surveillance video of the Plaintiff where the Plaintiff fell.

In this regard, the court noted that the Plaintiff did not have any evidence that any such video existed in the first place, let alone that it was destroyed.

The court also noted that the record confirmed that the alleged fall took place in a blind spot in the Defendant’s store in terms of any video surveillance.

On the liability issue, the court noted that there was no evidence in the record to establish that the Defendant either created the hazard or had any constructive notice of an allegedly defected condition. 

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

I send thanks to Attorney James M. Beck of the Philadelphia office of the Reed Smith law firm for bringing this case to my attention.

Appellate Court Affirms Refusal by Trial Court to Issue Adverse Inference Instruction Regarding Allegedly Altered Medical Records in Med Mal Case

In the case of Cragle v. O’Brien, 2019 Pa. Super. 360 (Pa. Super. Dec. 20, 2019 Gantman, P.J.E., McLaughlin, J., and Ford Elliot, P.J.E.) (Op. by McLaughlin, J.), the Pennsylvania Superior Court ruled that a medical malpractice Plaintiff was not entitled to an adverse inference instruction relative to the alleged destruction of medical records.  The judgment entered below in favor of the Defendants was affirmed.

The appellate court more specifically noted that it agreed with the trial court that the Plaintiff had failed to expressly request the standard jury instructions for alteration or destruction of medical records. The Superior Court additionally noted that the Plaintiff failed to ensure that a transcript of the charging conference was included in the certified record on appeal. 

The appellate court also appointed to the fact that the Plaintiff had failed to submit a proposed jury instruction for the applicable statute to the trial court below. 

Lastly, the appellate court reiterated that, in any event, the parties all agreed that the events described in the allegedly altered portion of the doctor’s office notes never happened. 

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

Source: “Digest of Recent Opinions” Pennsylvania Law Weekly (Jan. 7, 2020).

No Independent Cause of Action for Spoliation Recognized in Pennsylvania

In the case of Marinkovic v. Battaglia, No. 1:14-CV-49 (W.D. Pa. Sept. 23, 2019 Baxter, J.), the court granted a Motion to Dismiss after confirming that Pennsylvania law does not recognize any independent cause of action for spoliation.  (See Op. at p. 23-29).

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

I send thanks to Attorney James M. Beck of the Philadelphia office of the Reed Smith law firm for bringing this case to my attention.