Wade Clark Mulcahy LLP

In<em> <a href="https://www.wcmlaw.com/wp-content/uploads/2023/08/Kunsman-et-al-v.-Wawa-Inc.pdf">Kunsman, et al v. Wawa, Inc.</a>, </em>Brian Kunsman was allegedly injured when he slipped and fell on a yellow-painted surface on a parking area at the rear of a Wawa store in Royersford, PA.  Following a defense verdict at trial, Plaintiffs raised two arguments in their Motion for Post-Trial Relief:  (1) that the Court erred in refusing to give the jury a spoliation instruction and instead instructed the jury on failure to produce evidence; and (2) that the Court erred in excluding evidence of other slips and falls at other Wawa stores.  The Court denied both arguments and Plaintiffs appealed to the Superior Court, Judge Jeffrey S. Saltz issued a Rule 1925 statement urging that the Court affirm the jury’s verdict.

During trial, the jury heard conflicting evidence as to whether a video security camera captured Kunsman’s fall.  Although there was no dispute that video cameras covered some of the premises, their was conflicting evidence as to whether any of those cameras covered the rear of the parking lot where Kunsman fell.  The assistant general manager, who was on duty at the time of the accident but did not witness it, testified that he had secured video of the area of the fall.  By contrast, the general manager, who was not on duty at the time of the accident, testified that there were no cameras that could have captured the site of the accident.  During trial, the Court directed Wawa to produce all videos from the date of the accident, but none showed the site of the accident.  Plaintiffs requested a spoliation of evidence charge, but the Court denied the request and instead issued a failure to produce evidence charge.   The Court instructed the jury that “When a piece of evidence is within the control of one party in a lawsuit and would be relevant and helpful to that party and that party does not satisfactorily explain why it was not produced during the trial, then you may find that the evidence would have been unfavorable to the party if it had been produced at trial.  It is up to you to determine whether or not there was, in fact, video by Wawa that show the accident or its aftermath.”

Judge Saltz wrote that the “most obvious problem with Plaintiffs’ argument is that the instruction given by the Court is substantially the same as the requested instruction on spoliation of evidence.  Under either instruction, the jury “may find” that the evidence “would have been unfavorable” to the disposing or non-producing party.  Because the jury returned a verdict finding that Wawa was not negligent, it was assumed that the jury either determined that there was never a video of the accident site or it determined that the video did exist and was not produced, but declined to draw a negative influence.

Wawa had filed a Motion in Limine to preclude evidence relating to prior lawsuits against Wawa.  Laura Drake, a senior general liability specialist for Wawa, testified at a deposition about a list of fourteen individuals (including Kunsman) on a list of claims in Pennsylvania prior to October 2015 where someone had allegedly slipped on the yellow traffic marking paint.  Drake then clarified that the list included claims that “involved “ a painted yellow line.  Drake was unable to testify to the details or circumstances of individual claims on the list.  She did confirm that only one other such claim arose at the Royersford store.  By the time of trial, Drake had retired from Wawa and her attendance at trial could not be obtained.  Her deposition was admitted at trial.

Judge Saltz granted Wawa’s Motion in Limine in part, allowing only evidence of the one other accident at the Royersford store.  In doing, Judge Saltz relied on well-established standard for the admission of evidence of prior accidents:  “Evidence of prior accidents involving the same instrumentality is generally relevant to show that a defect or dangerous condition existed or that the defendant had knowledge of the defect.  However, this evidence is admissible only if the prior accident is sufficiently similar to the incident involving the plaintiff which occurred under sufficiently similar circumstances.  The burden is on the party introducing the evidence to establish this similarity before the evidence is admitted.”  <em>Valentine v. Acme Markets, Inc. </em>687, A.3d 1157, 1162-1164 (Pa. Super. 1997).  Here, Plaintiff did not sustain their burden of proving that the claims on Drake’s list, other that the one other accident at the Royersford store, were sufficiently similar to the Kunsman incident under sufficiently similar circumstances.

Thanks to Jim Scott for his contribution to this article.  Should you have questions, contact <a href="tbracken@wcmlaw.com">Tom Bracken</a>.

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