Wade Clark Mulcahy LLP

<p style="text-align: justify;">A recent opinion in <em><a href="https://www.wcmlaw.com/wp-content/uploads/2021/07/Nixon-v.-Family-Dollar-Stores-of-Pennsylvania-LLC.pdf">Nixon v. Family Dollar Stores of Pennsylvania, LLC</a>,</em> a slip and fall case from the Middle District of Pennsylvania, highlights the importance of preserving video surveillance, and the potentially dire consequences for failing to do so.</p>
<p style="text-align: justify;">In April 2018, Vanessa Nixon was shopping for a birthday card at a Family Dollar store in Williamsport, Pennsylvania, took five or six steps down the party aisle when she slipped and fell on a large puddle.  Nixon testified that she was “scanning the aisle” as she walked and that she did not look at the floor prior to her fall.  The puddle was clear and was approximately three feet long and several inches wide.  A friend of Nixon, who was also shopping at the store, testified that a Family Dollar employee was mopping the floor in the next aisle over.  The employee then retrieved a wet-floor sign and placed it in the aisle in which she was mopping, and then came to attend to Nixon.</p>
<p style="text-align: justify;">The Williamsport Family Dollar had video security system in operation at the time of the accident.  The system’s cameras covered various locations with the store, including the front and rear entrances, the cash registers, the health and beauty aisles, and perhaps the cooler and freezer aisle of the chemical air-freshener aisle.  However, there were no cameras covering the party aisle where the accident occurred or the entryways to the party aisle.  The surveillance video is recorded into the system and stored on a DVR.  Video can be copied and saved from the DVR, if necessary, and all videos in the DVR system are automatically deleted 30 days after they are initially recorded.  Store managers and assistant store managers are trained to record and save footage.  Family Dollar has a policy of retaining footage when specifically asked to do so, and has done so following requests by the police department, the store’s loss-prevention department, and its insurance company.  The day after the accident, Family Dollar received a letter from Nixon’s attorney asking it to retain and save all surveillance footage from that day.  Inexplicably, however, no footage from the date of the accident was ever retained.</p>
<p style="text-align: justify;">Thereafter, Nixon filed a complaint alleging a single count of negligence against Family Dollar.  Family Dollar moved for summary judgment, arguing that: (1) the puddle was an open and obvious condition thereby relieving Family Dollar of the duty to warn; and (2) Plaintiff had not presented any evidence that Family Dollar had actual or constructive notice of the puddle.  With regard to the first argument, Judge Matthew W. Brann, U.S.D.J held that reasonable minds might differ on the question of whether Nixon could reasonably have become aware of the puddle and its attendant dangers.  With regard to the lack of notice argument, Judge Brann held that Family Dollar spoliated evidence by not preserving the surveillance video, and he imposed a sanctioned of a permissive adverse inference instruction on notice.  Because a jury would be allowed (but not required) to infer notice simply on the basis of Family Dollar’s spoliation, a dispute of material fact now existed, and summary judgment was denied.</p>
<p style="text-align: justify;">On the question of spoliation, Judge Brann employed the Third Circuit’s four-factor test to determine whether a party has spoliated evidence.  Under that test, spoliation occurs where: (1) the evidence was in the party’s control; (2) the evidence is relevant to the claims or defenses in the case; (3) there has been actual suppression or withholding of evidence; and (4) the duty to preserve the evidence was reasonably foreseeable to the party.  A finding of bad faith is pivotal to a spoliation determination and decided under the third factor of actual suppression or withholding.  Judge Brann found all factors were present.  Although there was no evidence that Family Dollar had intentionally erased the video, Judge Brann found that it had acted in bad faith because it was put on notice the day after the accident and was explicitly asked to save footage from the previous day.  According to Judge Brann, there was “no justification” for the store manager’s failure to preserve the evidence.  Although Judge Brann acknowledged the security cameras “may not have shed light on the party aisle or the circumstances of Nixon’s fall,” he stated that the video would have been relevant to providing or disproving  constructive notice.  By way of example, the footage may have shown whether the cashier was at the register at the register prior to the accident, as well as when the wet-floor sign was ultimately place in the party-aisle (if the sign was retrieved from a location under surveillance).</p>
<p style="text-align: justify;">This case provides two important cautionary pieces of advice for premises owners to retain surveillance video.  First, the failure to retain surveillance video – even if inadvertent – may result in sanctions from the Court that could undercut potentially dispositive defenses.  Second, even if the video may not show the actual happening of the accident, it may nevertheless be relevant for other reasons.</p>
<p style="text-align: justify;">Thanks to James Scott for his contribution to this post.  Should you have any questions, please feel free to contact <a href="mailto:tbracken@wcmlaw.com">Tom Bracken</a>.</p>