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April 16th, 2019
Recently, in Marshall v. Brown’s IA, LLC (“ShopRite”), the Pennsylvania Superior Court vacated judgment as a result of the trial court’s failure to provide the jury with an adverse inference jury instruction.
While shopping at ShopRite, Ms. Marshall slipped on water and fell, aggravating a pre-existing injury to her hip and back. ShopRite employees summoned medical assistance, and an incident report was prepared immediately thereafter. The incident report revealed that Ms. Marshall stated that she was getting a pepper in the produce department when she slipped and fell on water. Approximately two weeks later, ShopRite received a letter of representation from Ms. Marshall’s counsel requesting that ShopRite retain surveillance video of the accident and area in question for six hours prior to the accident and three hours after the accident. Additionally, the letter cautioned:
If any of the above evidence exists, and you fail to maintain same until the disposition of this claim, it will be assumed that you have intentionally destroyed and/or disposed of evidence. Please be advised that you are not permitted, and are in no position, to decide what evidence plaintiff would like to review for this case. Accordingly, discarding any of the above evidence will lead to an Adverse Inference against you in this matter.
While Ms. Marshall’s slip and fall was captured on the store’s video surveillance system, ShopRite decided to preserve only thirty-seven minutes of video prior to Ms. Marshall’s fall and approximately twenty minutes after, and permitted the remainder to be automatically overwritten after thirty days.
Ms. Marshall filed a claim against ShopRite alleging that it was negligent in failing to keep its premises safe by failing to remove water on the floor that it knew or should have known was present and posed a risk to its customers. The case proceeded to a jury trial, and in his opening statement, counsel for ShopRite told the jury that it wasn’t possible to tell from the video if there was water on the floor, how it got there or when it got there. ShopRite’s Risk Manger testified that it was ShopRite’s “rule of thumb” to preserve video surveillance from twenty minutes before and twenty minutes after a fall, but offered no explanation why it deviated from its typical practice. It was his opinion that the video produced was sufficient to see the defective condition if it could be seen at all, and because the substance on the floor could not be seen on the retained portion of the video, he maintained it “would be a fool’s errand” to go back several hours as requested. He added that it was impractical and costly to retain the requested six hours of pre-incident videotape.
ShopRite also offered evidence of its reasonable care in keeping the store premises safe for customers. Managers testified that employees were trained in the importance of preventing slip and falls, and described financial incentives for employees who located and cleaned up spills. The store also uses the Gleason system, an electronic monitoring system whereby an employee walks around the store every hour on a designated route that passes thirty-five buttons. As the employee inspects the floor in each area near the button, he or she uses an electronic wand to press the button indicating whether there was a wet spill, dry spill, or the area was clear. The system creates a log for each of the walk-throughs. Ms. Marshall fell almost fifty minutes after the last Gleason inspection.
At trial, Ms. Marshall contended that ShopRite’s conscious decision not to retain the video evidence constituted spoliation, which entitled her to an adverse inference charge to the jury. Specifically, Pa.S.S.J.I. 5.60, relating to spoliation of evidence, provides:
If a party disposes of a piece of evidence before the other party had an opportunity to inspect it, and the party who disposed of the evidence should have recognized the evidence was relevant to an issue in this lawsuit, then you may find that this evidence would have been unfavorable to them, unless they satisfactorily explain why they disposed of this evidence.
ShopRite argued that because the video did not show water of the floor, the destroyed video would have no relevant evidence. Moreover, ShopRite claimed that by following its retention policy, it did not act in bad faith in deleting the additional video requested. The trial court determined that Ms. Marshall’s counsel’s request to preserve the video did not make it relevant. The court also concluded that ShopRite did not act in bad faith; and therefore, refused to give the requested adverse inference charge. However, the court permitted Ms. Marshall’s counsel to argue to the jury that it should infer from ShopRite’s decision not to retain more of the video prior to Ms. Marshall’s fall that the video was damaging to ShopRite.
In his closing argument, counsel for Ms. Marshall told the jury that ShopRite intentionally decided to eliminate the requested portions of the video because it was harmful to them, and that the water was on the floor long enough that, with reasonable care, they should have seen and remedied it. ShopRite maintained that because one could not discern water on the floor in the existing video, it could not be reasonably expected to show water during any other portion of the video. Ultimately, the jury found in favor of ShopRite, and Ms. Marshall’s appealed the decision claiming that the trial court erred in refusing to give the requested spoliation instruction to the jury.
The Pennsylvania Superior Court found that where a party destroys or loses proof that is pertinent to a lawsuit, a court may impose a variety of sanctions, among them “entry of judgment against the offending party, exclusion of evidence, monetary penalties such as fines and attorney fees, and adverse inference instructions to the jury.” Hammons v. Ethicon, Inc., 190 A.3d 1248, 1281 (Pa.Super. 2018). The Adverse Inference doctrine “attempts to compensate those whose legal rights are impaired by the destruction of evidence by creating an adverse Inference against the party responsible for the destruction.” Duquesne Light v. Woodland Hills Sch. Dist., 700 A.2d 1038, 1050 (Pa.Cmwlth. 1997). The duty to retain evidence is established where a party “knows that litigation is pending or likely” and “it is foreseeable that discarding the evidence would be prejudicial” to the other party. Where spoliation has occurred, the trial court must weigh three factors in assessing the proper penalty: “(1) the degree of fault of the party who altered or destroyed the evidence; (2) the degree of prejudice suffered by the opposing party; and (3) 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.” Gavin v. Loeffelbein, 161 A.3d 340, 353-54 (Pa.Super. 2017).
Ultimately, the Court determined that the missing video was relevant because it may have shown when the spill occurred, or whether other customers may have slipped, and/or it could have been probative as to whether ShopRite’s inspection and safety precautions were being followed. Moreover, the Court found that ShopRite intentionally, unilaterally and arbitrarily preserved thirty-seven minutes of footage prior to the fall without any explanation as to why it deviated from its usual practice, why thirty-seven minutes in particular were preserved, or who made that decision. In fact, ShopRite’s Risk Manger disavowed any knowledge of who made the decision to retain only a portion of the video. The Court further explained that the thirty-seven minutes prior to Ms. Marshall’s fall did not even include the fifty minutes that elapsed after the last Gleason inspection of the area. Furthermore, conspicuously absent was testimony from anyone at ShopRite that he or she watched the video for the six-hour-period prior to the fall before determining that it did not contain any relevant evidence.
Finally, the Court held that the trial court’s finding that there was no spoliation because ShopRite did not act in bad faith was based on an incorrect application of the doctrine. The Court explained that spoliation may be negligent, reckless, or intentional; a party’s good or bad faith in the destruction of potentially relevant evidence goes to the type of sanction that should be imposed, not whether a sanction is warranted. Thus, the Court held that ShopRite’s conduct herein constituted spoliation, and remanded the case back to the trial court for a new trial.
