“Let’s go to the videotape!” This catchphrase initially had everything to do with sports broadcasting. However, the value of capturing moments in time can’t be dismissed. Consider what happened in a recent case involving a short video and a slip and fall accident.
The Superior Court of Pennsylvania decided Marshall v. Brown’s IA, LLC on March 27, 2019. The case is a published opinion and represents precedential law. It has everything to do with a grocery store slip and fall accident and claims of spoliation of evidence.
Consider the facts as presented in the case. The plaintiff, Harriet Marshall suffered injuries while shopping in the Island Avenue Shop Rite in Philadelphia. Brown’s IA, LLC owns thirteen supermarkets, including this Shop Rite.
According to Marshall, she slipped and fell on water in the produce aisle. As a result, she aggravated pre-existing injuries to her hip and back. The store provided Marshall with medical assistance and completed an incident report.
Marshall’s injuries were bad enough that she sought legal counsel. In fact, approximately two weeks after her fall, her attorney sent a letter of legal representation to the Shop Rite. The lawyer specifically requested that the grocery store retain surveillance video.
Truth be told, the attorney’s request was very specific. The firm wanted to ensure the video of the accident and area in question included footage for six hours before and three hours after the incident.
In the meantime, Marshall’s attorney wanted to make sure Shop Rite knew there were consequences to intentionally destroying or disposing of the evidence. The letter included a warning that “discarding any of the above evidence will (would) lead to an Adverse Inference.”
Slip and Fall Accident on Video
Shop Rite produced a video in response to the request from Marshall’s lawyer. That said, the supermarket only preserved thirty-seven minutes of video before the fall – and twenty minutes after it. Within 30 days, the store allowed the camera’s automatic overwrites to go into effect.
During trial testimony, the grocery store’s risk manager testified concerning the usual procedures as far as videos. The “rule of thumb” was to keep only twenty minutes before and after any slip and fall accidents. In fact, the risk manager stated it was impossible to see any substances on the floor in the existing footage. Therefore, it did not make sense to look back in time.
Shop Rite provided evidence regarding its responsibilities to ensure reasonable care in keeping the premises safe for customers. Training exercises regarding slip and fall preventions were described. Apparently, the supermarket even offered financial incentives to employees to encourage them to keep areas safe. Managers testified concerning safety inspections and logs kept.
One of the exhibits entered into court included a log documenting times of the inspections conducted in the produce area where the slip and fall accident occurred.
Failure to Retain Video
During the trial, Marshall’s lawyer suggested that Shop Rite consciously decided not to retain the video because it was not to their benefit. After all, the possibility existed that the video showed how the water got on the floor in the first place. The attorney requested that the trial judge give an adverse interference charge to the jury.
You might already have some inkling as to the meaning of adverse inference. In this case, the absence of the prior video footage acted against Marshall’s best interests. Indeed, it represented spoliation of the evidence.
The trial court ruled that just because the footage was requested did not make it relevant. The adverse inference charge was not given to the jury. In the end, the verdict favored Shop Rite.
When the case went up on appeal, it came back with a different result. For one, the court acknowledged other rulings regarding the duty to retain evidence. It is well-established that it proves necessary “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.”
Shop Rite had a duty to care for Marshall’s safety as a business invitee. The court acknowledged that plaintiffs have a difficult time proving dangerous conditions. However, rewinding a videotape often helps the process. Shop Rite’s decision to preserve only a small portion of the video was short-sighted. Even if store personnel did not have bad intentions by not retaining prior footage, their decision represented spoliation of the evidence.
In the end, the case was remanded back to the lower court for a new trial.
At Fellerman & Ciarimboli, we handle a wide array of personal injury claims, including those arising from slip and fall accidents. If you were injured due to someone else’s negligence, we can help. Contact us to set up an appointment.
With more than 40 years of combined experience, the personal injury attorneys at Fellerman & Ciarimboli strive to provide the best service to clients in Philadelphia, Northeast Pennsylvania, and throughout the Keystone State.