The Superior Court has just issued an excellent precedential opinion granting a new trial to a plaintiff after the trial court refused to give an adverse inference charge on spoliation (destruction of evidence). Marshall v. Brown’s IA, LLC, 2019 WL 1372399 (Pa. Super., March 27, 2019). The opinion is not only very helpful on video surveillance in slip-and-fall cases, but it has comments that could be useful in any video surveillance case.
Plaintiff claimed she slipped on water in a ShopRite supermarket. About two weeks later her counsel wrote ShopRite and demanded that they retain surveillance video for 6 hours prior to the accident and 3 hours afterwards. This retention letter is of crucial importance in any case where video surveillance is suspected. The Court’s opinion refers to “the ubiquitous use of video surveillance.”
The video did show the slip and fall. The video did not show water on the floor at the time of the accident.
The plaintiff’s lawyer’s request for a total of 9 hours of video was not honored. At trial, a ShopRite employee testified that their “rule of thumb” was to preserve 20 minutes before and after a fall. However, for an unknown reason, ShopRite preserved 37 minutes before and 20 minutes after.
The trial court found no bad faith by the store in allowing other parts of the video to be overwritten. The trial court refused plaintiff’s request to charge the jury on spoliation. The jury found for the defense. On appeal, the Superior Court rejected ShopRite’s explanations and granted a new trial due to the failure to charge on spoliation.
ShopRite argued that since the retained portion of the video did not show the water, it would be a “fool’s errand” to go back several hours as requested. The Superior Court wrote that even if the video did not capture the precise cause of the spill or show the liquid on the floor, the video could still have probative value. It might show someone dropping something. Events occurring well in advance of the plaintiff’s accident might be relevant to defendant’s knowledge or constructive notice or whether defendant exercised reasonable care to keep the premises safe. The video might show someone else slipping. Since employees wore uniforms, the video could be instructive as to when an employee last entered the area of the spill.
The Superior Court wrote that the retention letter put ShopRite on notice to preserve the video as it was arguably relevant to impending litigation. The Court found “conspicuously absent” testimony that anyone from ShopRite watched the requested 6 hours in order to determine that it had no relevant evidence.
In response to ShopRite’s argument that preserving 9 hours of video was time consuming and expensive, the Court said that if ShopRite had told this to plaintiff’s counsel, ShopRite might have permitted plaintiff’s counsel to watch the entire requested footage prior to deletion. If the parties could not then agree on what to preserve, either party could have asked a court to resolve the dispute.
The Superior Court wrote that the record arguably supported a finding of bad faith. And the Superior Court explicitly stated that the finding of no bad faith did not negate or excuse spoliation. Spoliation may be negligent, reckless or intentional. The good or bad faith of the destruction goes to the type of sanction to be imposed.
In sum, Marshall has much excellent language undercutting defenses to spoliation of video surveillance. We recommend liberal use of this opinion, not only in slip-and-fall cases, but in any case where a defendant tries to justify destruction of video surveillance.