Video Evidence of Frequent Recurrences of Alleged Creation of Liquid on Floor Sufficient to Create Issues of Fact Regarding Constructive Notice in a Slip and Fall Case (Non-Precedential)

In its non-precedential decision in the case of Oudolsky v. Mount Airy Casino #1, LLC, No. 3109 EDA 2023 (Pa. Super. Oct. 22, 2024 Kunselman, J., Nichols, J., and Beck, J.) (Op. by Kunselman, J.), the Pennsylvania Superior Court reversed a trial court’s entry of summary judgment in a slip and fall case.

This case involved a plaintiff who slipped and fell at a casino in an area where there was a marble floor and a nearby sanitizing liquid dispenser.  Video evidence showed other patrons utilizing the dispenser in the time before the plaintiff came along and slipped and fell.

The court noted that proof of actual or constructive notice on the part of a landowner, that a dangerous condition was caused by the landowner, by way of actual notice through frequent recurrences of the dangerous condition can amount to sufficient evidence to prove liability.

The court noted that evidence from surveillance video was sufficient to create issues of fact as to both recurrence and length of time on the issue of constructive notice.

The Superior Court also noted that the close proximity of the Defendant’s dispenser to where the Plaintiff slipped on liquid is sufficient circumstantial evidence as to the source of the liquid to enable the jurors to find causation. The court noted that there was no other source for the liquid present.

Anyone wishing to review a copy of this non-precedential decision may click this LINK.


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

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In non-precedential decision in the case of Harkins v. Three Monkeys Croyden, Inc., No. 637  EDA 2023 (Pa.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.

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.

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).

Summary Judgment Granted in Slip and Fall Case -- Mere Happening of an Incident Does Not Equal Liability

In the case of Harkins v. Three Monkeys Cronydon, Inc., No. 2019-CV-03333 (C.P. Bucks Co. April 18, 2023 McHugh, J.), the court issued a Rule 1925 Opinion to explain its rationale to the Superior Court in terms of its entry of summary judgment in this slip and fall case.

In its Opinion, the trial court emphasized that the existence of a harmful condition and/or the happening of an accident, in and of themselves, do not automatically establish a breach of the landowner’s breach of care.

The court found that the Plaintiff had failed to provide evidence to specifically identify exactly what caused the Plaintiff to fall. It was also noted that the Plaintiff failed to provide evidence that the Defendant knew or should have known about any alleged condition and/or that the Defendant failed to exercise reasonable care to protect invitees from an alleged danger.

With respect to the Plaintiff’s offer of expert testimony on the liability issues, the court noted that the admission of such testimony was at the discretion of the trial court. In this matter, the court found that the Plaintiffs’ expert’s opinion was deficient, and that the opinion offered by the expert was lacking any specialized knowledge beyond that of a layperson. The court also found that the expert failed to provide sufficient scientific authority to support the expert’s opinions.

With regards to the Plaintiff’s claim of spoliation relative to any video surveillance of the incident, the court found that the deletion of video surveillance footage under the Defendant’s standard policy did not constitute spoliation because there was no evidence presented to suggest that the footage that was deleted was relevant in determining the case of the Plaintiff’s fall.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (June 13, 2023).

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 Addresses Discovery of Store Surveillance Videos in Premises Liability Case

In the premises liability case of Dietzel v. Costco Wholesale, No. 22-CV-0035 (E.D. Pa. July 12, 2022 Sitarski, J.), the court ruled that an incident report in a slip and fall matter was not privileged where it was a standard incident form prepared in the ordinary course of business and where there was no evidence that legal counsel ordered the preparation of the report or was involved in its preparation. As such, the Plaintiff’s Motion to Compel Discovery was granted in this regard.

According to the Opinion, the Plaintiff allegedly tripped and fell on a sidewalk as he entered the Defendants’ store.

In this matter, the Plaintiff also moved to compel the Defendant to produce surveillance footage.

The Defendants asserted that the fall was not captured on video because there were no nearby cameras. However, claim notes produced during discovery confirmed instructions to the Defendant to preserve footage from the nearest camera.

During the course of discovery, the Plaintiff requested the surveillance and, when it was refused, filed a Motion to Compel the Defendants to produce any footage from the property or to confirm that they failed to preserve footage as directed.

The court found that the Plaintiff’s request for all security footage from the store to be an overbroad request. Instead, the court ruled that a more reasonable scope would be to allow for footage from thirty (30) minutes before and after the subject incident and/or to require the Defendant to certify that they had no such footage.

In its Opinion, the court also ordered the Defendant to provide more specific Responses to the Plaintiff’s Interrogatories. However, the court denied the Plaintiff’s request for the identity of all employees working anywhere on the property on the date of the incident. The court found no basis for the Plaintiff to need to know the identity of the more than 100 workers who were working at the store on the date of the incident.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Aug. 12, 2022). 

Corrected Link to Capenos v. Greentree Hardware Case

 

Here is the corrected LINK for the case of Capenos v. Greentree Hardware & Electric, Inc., No. GD-20-010087 (Dec. 17, 2021 Ignelzi, J.), highlighted on Tort Talk yesterday, in which the court issued an Order ruling that surveillance footage of an automobile accident was required to be produced to Plaintiff’s counsel prior to the completion of the Plaintiff’s deposition.

Sorry for the faulty Link yesterday and thank you for reading Tort Talk.

Trial Court Judge Rules That Defense Must Produce Video of Accident Before Plaintiff's Deposition

In the case of Capenos v. Greentree Hardware & Electric, Inc., No. GD-20-010087 (C.P. Alleg. Co. Dec. 17, 2021 Ignelzi, J.), the court issued an Order ruling that surveillance footage of an automobile accident was required to be produced to Plaintiff’s counsel prior to the completion of the Plaintiff’s deposition.

According to one of the litigating attorneys, it does not appear that there is any Pennsylvania state appellate court decision on this particular issue.

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


I send thanks to Attorney Brad D. Trust, Esquire of the Pittsburgh law office of Edgar Snyder & Associates, LLC for bringing this Order to my attention.

Source of image: Photo by Pawel Czerwinski of Unsplash.

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.

   

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).