Trial News

The Pennsylvania Supreme Court has declined an appeal of a ruling ordering a new trial in a slip-and-fall case involving spoliation of video evidence, leaving in place an appellate court’s finding that an adverse inference instruction was warranted when the defendant grocery store failed to preserve the full time period of video surveillance the plaintiff had requested. The lower court found that the video could be relevant and probative of the defendant’s alleged negligence and that its choice not to preserve it constituted spoliation. (Marshall v. Brown’s IA, LLC, No. 473 EAL 2019 (Pa. Mar. 3, 2020).)

Harriet Marshall slipped on water in the aisle of the defendant’s grocery store, falling and injuring her back. Store employees called for an ambulance, and the store manager completed an incident report. The incident was captured on the store’s video surveillance system, and soon after, the plaintiff sent a letter requesting that all video from six hours before the incident to three hours after the incident be preserved. The defendant saved the 37 minutes before and 20 minutes after the plaintiff’s fall.

At trial, the defendant relied on the video to argue to the jury that it was impossible to tell whether water was on the floor when the plaintiff fell. The store manager also testified that the amount of video preserved was standard practice for the store and that viewing more than what had been preserved would not reveal anything more about the condition of the floor at the time the plaintiff fell. The defendant also presented evidence of the steps it takes to exercise reasonable care to prevent falls, including training employees and an electronic monitoring system that requires employees to follow a route through a store and press a button at designated stops to record the state of the floor in that area. The log from that system showed that the area where the plaintiff fell had last been inspected approximately 50 minutes earlier.

The plaintiff requested an adverse inference instruction to the jury for the defendant’s failure to preserve the full video time. She contended that the longer video may have shown when the spill occurred and whether an employee dealt with it. She also argued the longer video would be probative of whether the store was following its inspection and safety protocols. The trial court refused, noting that it did not find the defendant acted in bad faith, but it allowed the plaintiff to argue that the jury should infer that the deletion of the video meant that it was damaging to the defendant’s case. The jury found for the defendant, and the plaintiff appealed.

The appellate court (2019 WL 1372399 (Pa. Super. Ct. Mar. 27, 2019)) concluded that the trial court erred when it denied the request for an adverse inference instruction. The spoliation doctrine centers on whether relevant evidence has been lost or destroyed, and an adverse inference instruction is among the remedies for spoliation. A party has a duty to retain evidence when it knows that pending litigation is likely and it is foreseeable that not doing so would be prejudicial to the other party. The court explained that the test for an appropriate penalty has three prongs: “the degree of fault of the party who altered or destroyed the evidence;” “the degree of prejudice suffered by the opposing party;” and “whether there is a lesser sanction that will avoid substantial unfairness to the opposing party and, where the offending party is seriously at fault, will serve to deter such conduct by others in the future.”

Here, the plaintiff sent the preservation letter within two weeks of the incident and specified how much video to preserve. The court pointed out that the store manager testified that the policy was to preserve the 20 minutes before and after an incident but that it had preserved more than 20 minutes of the time before the plaintiff’s fall in this instance.

The appellate court found that the trial court’s view of relevant evidence was “unreasonably narrow” and that its finding of no bad faith by the defendant did not negate that spoliation has occurred. The court reiterated that the defendant has an affirmative duty to protect visitors from dangers it knew or should have known about by exercising reasonable care. It said that the longer video could have cleared up many questions about what was spilled and by whom in the area and for how long before the plaintiff fell—all relevant to whether the defendant knew or should have known about the floor’s allegedly dangerous condition.

The appellate court concluded that the defendant was on notice to preserve the longer video, that it consciously chose not to, and that it arbitrarily chose a time frame for what to preserve—and one that did not even include the full amount of time since the last claimed inspection of the area where the plaintiff fell. Because the defendant “unilaterally decided not to preserve arguably relevant evidence,” that constituted spoliation. The appellate court ordered a new trial.

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