Court Denies Motion For Summary Judgment in Store Trip and Fall Case

In the case of Vargas v. Wal-Mart Supercenter, No. 3:22-CV-01642 (M.D. Pa. Oct. 7, 2025 Latella, Mag. J.), the court denied a Defendant’s Motion for Summary Judgment in a premises liability case. 

The Defendant was attempting to rely upon surveillance videotape evidence that showed the Plaintiff's actions at the time of the incident.  The Defendant also asserted that the video confirmed that the condition that the Plaintiff encountered was open and obvious.

Federal Mag. Judge Leo Latella

Federal Middle District Court Magistrate Judge Leo Latella ruled that the Defendant’s surveillance videotape evidence did not reach the level of an irrefutable physical fact that could support summary judgment in this slip and fall matter.  

With regards to the Defendant’s argument that the interpretation of the video established the assumption of the risk defense as a matter of law, the court noted that it was for the jury to decide whether the Plaintiff’s account of the events leading to the fall down event was believable.  

The court additionally noted that the Defendant should have taken customer distraction into account in maintaining safety on the premises. 

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.  

Appellate Court Agrees That No Spoliation Occurred Where Camera Would Not Have Captured Area of the Incident

In a decision marked Non-Precedential in the the case of Conklin v. Wawa, Inc., No. 3006 EDA 2024 (Pa. Super. Aug. 6, 2025 Beck, J., Panella, P.J.E, Stabile, J.) (Op. by Beck, J.), the appellate court affirmed a trial court’s denial of post-trial motions in a slip and fall case.

Of note, the appellate court agreed that the Plaintiff was not entitled to an adverse inference jury charge based on the Defendant’s alleged spoliation of surveillance tapes.

In this matter, the record revealed that the video cameras could not have recorded the fall down event. Accordingly, the appellate court ruled that there was no basis for the claim that the fact that the tapes were routinely overwritten amounted to an intentional destruction of evidence.

The appellate court also found that the trial court did not abuse its discretion finding a lack of any fault to the Defendant with respect to the alleged loss of the evidence. The court additionally noted that, since the claimed fall would not have been on camera, there is no showing of any relevance or prejudice with respect to this evidence.

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.

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.

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).

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.

Motion To Bifurcate Lackawanna County Post-Koken Trial Denied

In the case of Nebesky v. Pagnotti, No. 2019-CV-3170 (C.P. Lacka. Co. Sept 15, 2021 Gibbons, J.), the court addressed a Motion to Bifurcate the Trial in this post-Koken automobile accident litigation. After reviewing Pa. R.C.P. 213(b) and after noting that the parties had cited two (2) court decisions at the trial court level from around the Commonwealth, this court chose to deny the Motion to Bifurcate.

Judge Gibbons noted that he believed that the attorneys involved would be able to outline their respective positions on the third party negligence claims and the UIM breach of contract claims to the jury in such a way as to avoid any confusion or prejudice. The court additionally felt that any potential prejudice to the third party Defendant in having an insurance company as a Co-Defendant could be rooted out in Voir Dire.

Judge James A. Gibbons
Lackawanna County

The Court also noted that the jury would be properly instructed on the law applicable to the negligence claims as well as the breach of contract claims.

Judge Gibbons also noted that he wished to remain consistent with the prior decisions out of Lackawanna County denying Motions to Bifurcate in post-Koken matters.


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