Wade Clark Mulcahy LLP

<p style="text-align: justify;">One of the many challenges inherit in litigation defense is impressing upon clients the important of performing a diligent search for records and preserving any potentially relevant evidence. In <em><a href="https://www.wcmlaw.com/wp-content/uploads/2019/08/Marshall-v.-Browns-IA-LLC-1.pdf">Marshall-v.-Browns-IA-LLC,</a></em>2019 PA Super 191, No. 2588 EDA 2017 (Pa. Superior Court), the Pennsylvania Superior Court offered a cautionary tale as Plaintiff was awarded a new trial after it found that defendant ShopRite had spoliated videotape evidence. Marshall sued Brown’s IA, which is a limited liability company that owns 13 grocery stores including a ShopRite in Philadelphia, after she slipped and fell on liquid that was on the floor of the produce aisle in a ShopRite store. Two weeks later, Marshall’s attorney sent ShopRite a letter requesting that ShopRite retain surveillance video of the accident for six hours prior to the accident and three hours after the accident. At trial, ShopRite’s risk manager testified that it was ShopRite policy to only preserve twenty minutes before and twenty minutes after a fall. He also testified that ShopRite decided to preserve only thirty-seven minutes of video prior to Marshall’s fall and twenty minutes after, and permitted the remaining footage to be automatically overwritten after thirty days. The substance on the floor could not be seen during the portion of the video that ShopRite retained.</p>
<p style="text-align: justify;">At trial, Marshall requested an adverse inference charge against ShopRite for spoliation of the videotape evidence, however the trial court refused to give the requested charge and stated that there was no bad faith on the part of ShopRite. The jury returned a verdict finding no negligence on the part of ShopRite and Marshall appealed, citing the court’s refusal to issue an adverse inference charge. On appeal, Marshall argued that ShopRite intentionally destroyed or failed to preserve relevant evidence which prejudiced her case. She also stated that the video footage was relevant because it may have shown how/when the spill occurred and therefore whether ShopRite knew or should have known about the dangerous condition. In addition, she argued that it would have been probative as to whether ShopRite’s inspection and safety protocols were followed.</p>
<p style="text-align: justify;">In its decision, the Superior Court explained that spoliation applies “where relevant evidence has been lost or destroyed,” and that a court may impose a variety of sanctions upon a spoliating party. It also stated that, because Marshall was a business visitor of ShopRite, ShopRite owed her the highest duty of care. Therefore, the omitted surveillance footage was relevant because it could have shown whether ShopRite knew or should have known of the liquid on the floor, and whether its employees acted in a reasonable manner to address the condition. Furthermore, the court noted that ShopRite failed to explain why it arbitrarily retained thirty-seven minutes of video prior to the fall when its stated policy was to preserve twenty minutes before and twenty minutes after. Finally, the court explained that bad faith is not necessary for a finding of spoliation, but rather goes to the type of sanction that should be imposed, not whether spoliation occurred. Therefore, the Superior Court concluded that there was no legal or factual support for the trial court’s finding that no relevant evidence was destroyed, and it vacated the judgment and remanded the case for a new trial. This case serves as an example for counsel and clients alike to ensure that reasonable steps are taken, and protocols are followed to preserve evidence that is relevant to pending litigation.</p>
<p style="text-align: justify;">Thanks to Greg Herrold for his contribution to this post. Please email <a href="mailto:VPinto@wcmlaw.com">Vito A. Pinto</a> with any questions.</p>