Wade Clark Mulcahy LLP

On March 27, 2019, <a href="https://www.wcmlaw.com/wp-content/uploads/2019/04/Marshall-v.-Browns-IA-LLC.pdf">the Superior Court of Pennsylvania granted</a> Harriet Marshall a new trial due to the trial court’s refusal to give an adverse inference instruction based on Brown’s IA, LLC spoliation of videotape evidence.  The case stems from a slip-and-fall which occurred inside the Island Avenue ShopRite in Philadelphia owned by Brown’s.

Approximately two weeks after the accident, counsel for Marshall sent Brown’s a letter requesting ShopRite retain all surveillance video of the accident and area in question for six hours prior and three hours after the accident.  However, ShopRite only preserved thirty-seven minutes of video prior to Marshall’s fall and twenty minutes following the fall.  As such, Brown’s failed to comply with Marshall’s request and a spoliation issue arose.

At trial, Marshall requested the Court give an adverse inference instruction based on Brown’s failure to retain the requested videotape evidence.  ShopRite used the “Gleason System” which requires an employee to walk around the store once per hour to check if there was a slipping hazard.  The Gleason logs for the day showed that the area Marshall fell was inspected from 7:07 a.m. to 7:09 a.m. and again at 8:01 a.m. to 8:05 a.m.  However, Marshall fell at approximately 8:54 a.m. and (conveniently) the Gleason inspection was not on the thirty-seven minutes of video preserved.  Notwithstanding this fact, the trial court stated ShopRite did not act in bad faith and the deleted portion of video was not in fact relevant.  Thus, the trial court merely allowed Marshall to argue to the jury that ShopRite’s failure to retain the surveillance video requested showed the deleted portion was damaging to ShopRite.

After the close of evidence, the jury returned a verdict in favor of Brown’s and Marshall appealed.  On appeal, the Superior Court deemed the deleted surveillance video was indeed relevant.  The Superior Court noted the deleted portion of video would have shown the safety precautions ShopRite had taken prior to the fall as well as how the dangerous condition arose.  Additionally, the Superior Court noted that ShopRite did not deny that it intentionally failed to preserve the video evidence; it simply maintained that the deleted portion had no evidentiary value.  Thus, the Court ruled that the trial court should have given the adverse jury instruction requested by Marshall and granted her a new trial.   Thanks to Garrett Gittler for his contribution to this post.  Please email <a href="mailto:BGibbons@wcmlaw.com">Brian Gibbons</a> with any questions.