J-A27001-18
2019 PA Super 191
HARRIET MARSHALL : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
BROWN’S IA, LLC : No. 2588 EDA 2017
Appeal from the Judgment Entered July 10, 2017
In the Court of Common Pleas of Philadelphia County Civil Division at
No(s): September Term, 2015 No. 03279
BEFORE: BOWES, J., STABILE, J., and McLAUGHLIN, J.
OPINION BY BOWES, J.: FILED JUNE 19, 2019
Harriet Marshall appeals from the July 10, 2017 judgment in favor of
Appellee Brown’s IA, LLC, and alleges that she is entitled to a new trial because
the trial court erred in refusing to give an adverse inference instruction based
on Appellee’s spoliation of videotape evidence. We vacate the judgment and
remand for a new trial.
Brown’s IA, LLC (“ShopRite”) owns thirteen grocery stores, one being
the Island Avenue ShopRite in Philadelphia. On August 6, 2014, Ms. Marshall
slipped on water, fell in the produce aisle of the store, and aggravated a pre-
existing injury to her hip and back. ShopRite employees came to her aid and
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summoned medical assistance, and the manager completed an incident report
immediately thereafter.1
Approximately two weeks later, ShopRite received a letter of
representation from Ms. Marshall’s counsel requesting that ShopRite retain,
inter alia, 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.
Plaintiff’s Exhibit 3 (letter from counsel, 8/18/14, at 1).
Ms. Marshall’s slip and fall was captured on the store’s video surveillance
system. However, 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.
Subsequently, counsel for ShopRite told the jury in his opening statement
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1 The incident report was prepared by Ashley Jones, the Human Resources
Manager. She noted therein that Ms. Marshall stated that she was getting a
pepper in the produce department when she slipped and fell on water. Ms.
Jones testified at trial that although she could not remember seeing water on
the floor, “[i]f I didn’t see it then I would put that on the report.” N.T. Jury
Trial, 1/12/17, at 76, 78. The report contained no such notation.
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that, “it isn’t possible to tell from the video if there was water on the floor,
how it got there or when it got there.” N.T. Jury Trial, 8/6/14, at 42.2
ShopRite’s Risk Manager, Matthew McCaffery, testified that it was
ShopRite’s “rule of thumb” to preserve video surveillance from twenty minutes
before and twenty minutes after a fall. He opined that the video produced
was sufficient to see the defective condition if it could be seen at all. Since
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. N.T. Jury Trial, 1/13/17, at 35. He added that it was impractical
and costly to retain the requested six hours of pre-incident videotape.
At trial, ShopRite 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, once per
hour, an employee walks around the store 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
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2 At the close of Plaintiff’s case, ShopRite moved for a non-suit, alleging that
there was no evidence as to how the liquid got on the floor or how long it was
there. The trial court denied the nonsuit.
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creates a log for each of the walk-throughs. The Gleason logs for the day of
Ms. Marshall’s fall indicated that the produce area where she fell was inspected
from 7:07:52 a.m. to 7:09:59 a.m., and again at 8:01:42 a.m. through
8:05:34 a.m. Trial Exhibit P-2. Ms. Marshall fell at approximately 8:54 a.m.,
almost fifty minutes after the last Gleason inspection.
Ms. Marshall contended below that ShopRite’s conscious decision not to
retain the video evidence constituted spoliation, and she asked the trial court
to give an adverse inference charge to the jury.3 N.T. Jury Trial, 1/14/17, at
14. ShopRite argued there was no relevant evidence disposed of as the video
did not show drops of water on the floor, and furthermore, it did not act in
bad faith in deleting the additional video requested. The trial court observed
first that the fact that the video was requested did not make it relevant. It
concluded further that there was no bad faith on the part of ShopRite, and
refused to give the requested adverse inference charge. The court did agree,
however, that Ms. Marshall’s counsel could 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.
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3 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.
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Counsel for Ms. Marshall told the jury in closing argument that ShopRite
made the conscious decision not to keep 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. Defense counsel countered,
But you have seen the video, you have seen the quality of the
video. Is there really any expectation that if more video had been
saved that we would have seen something, we would have seen
when this obviously small spot of water that you can’t even see
on the floor could have gotten on the floor?
N.T. Jury Trial, 1/17/17, at 71.
The jury returned a verdict in favor of ShopRite, finding no negligence.
Ms. Marshall filed timely post-trial motions alleging that she was entitled to a
new trial because the trial court erred in refusing to give the requested
spoliation instruction to the jury. The motion was deemed denied pursuant to
Pa.R.C.P. 227.4(1)(b), when more than one hundred and twenty days elapsed
and the trial court did not rule on the motion. Judgment was entered on July
10, 2017, and Ms. Marshall timely appealed. She raises one question for our
review:
[ShopRite] deliberately failed to retain (i.e., destroyed) relevant
and material video surveillance evidence which, if preserved,
would have established: a) when the dangerous condition that
caused [Ms. Marshall] to slip and fall came into existence; and b)
whether [ShopRite] fulfilled its duty to make its supermarket safe
for customers by adhering to its policies and procedures of
inspecting for and removing defects, as it claims to have done.
Given this fact, did the trial court abuse its discretion by declining
to read a spoliation of evidence instruction to the jury at trial?
Appellant’s brief at 4.
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At issue herein is whether the trial court erred in refusing a requested
adverse inference instruction based on ShopRite’s alleged spoliation of video
surveillance evidence. We review trial court rulings on spoliation claims for
an abuse of discretion. Mt. Olivet Tabernacle Church v. Edwin L.
Wiegand Div., 781 A.2d 1263, 1269 (Pa.Super. 2001).
Our Supreme Court defined spoliation of evidence in Pyeritz v.
Commonwealth, 32 A.3d 687, 692 (Pa. 2011), as “the non-preservation or
significant alteration of evidence for pending or future litigation[,]” and
authorized “trial courts to exercise their discretion to impose a range of
sanctions against the spoliator.” See Schroeder v. Commonwealth
Department of Transportation, 710 A.2d 23, 27 (Pa. 1998). The doctrine
applies “where ‘relevant evidence’ has been lost or destroyed.” Mount
Olivet, supra at 1270. 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) (quoting Mt. Olivet, supra at 1272-73).
As we recently noted in Rodriguez v. Kravco Simon Co., 111 A.3d
1191 (Pa.Super. 2015), penalties for spoliation have been imposed since the
early 17th century. The doctrine “attempts to compensate those whose legal
rights are impaired by the destruction of evidence by creating an adverse
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inference against the party responsible for the destruction.” Duquesne Light
v. Woodland Hills Sch. Dist., 700 A.2d 1038, 1050 (Pa.Cmwlth. 1997).
When we review the propriety of a sanction, “we must determine whether the
court abused its discretion.” Parr v. Ford Motor Co., 109 A.3d 682, 701
(Pa.Super. 2014) (en banc).
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. Mt. Olivet, supra at 1270-
71. 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.”
Parr, supra at 702.
In its opinion, the trial court concluded, “[b]ased upon Mr. McCaffery’s
testimony and the surveillance video itself, . . . that no relevant evidence was
spoliated” and that ShopRite did not act in bad faith. Trial Court Opinion,
4/4/18, at 6. It further justified its ruling by relying upon PTSI, Inc. v. Haley,
71 A.3d 304 (Pa.Super. 2013), and the proportionality standard from the 2012
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Explanatory Comment preceding Pa.R.C.P. 4009.1, governing the discovery
of electronic information.4
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4The 2012 Explanatory Comment to Pa.R.C.P. 4009.1 provides in relevant
part:
....
B. Proportionality Standard
As with all other discovery, electronically stored
information is governed by a proportionality standard in
order that discovery obligations are consistent with the just,
speedy and inexpensive determination and resolution of
litigation disputes. The proportionality standard requires
the court, within the framework of the purpose of discovery
of giving each party the opportunity to prepare its case, to
consider: (i) the nature and scope of the litigation, including
the importance and complexity of the issues and the
amounts at stake; (ii) the relevance of electronically stored
information and its importance to the court’s adjudication in
the given case; (iii) the cost, burden, and delay that may be
imposed on the parties to deal with electronically stored
information; (iv) the ease of producing electronically stored
information and whether substantially similar information is
available with less burden; and (v) any other factors
relevant under the circumstances.
C. Tools for Addressing Electronically Stored Information
Parties and courts may consider tools such as electronic
searching, sampling, cost sharing, and non-waiver
agreements to fairly allocate discovery burdens and costs.
When utilizing nonwaiver agreements, parties may wish to
incorporate those agreements into court orders to maximize
protection vis-‘a-vis third parties. See, e.g., Fed. R. Evid.
502(c).
Explanatory Comment preceding Pa.R.C.P. 4009.1 (2012).
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Ms. Marshall relies upon several authorities, including DeWeese v.
Anchor Hocking Consumer and Industrial Products Group, 628 A.2d 421
(Pa.Super. 1993), and Duquesne Light Co., supra in support of her
contention that the rationale for the doctrine of spoliation is not limited to
products liability cases, and is applicable herein. Ms. Marshall contends
further that the trial court’s reliance upon PTSI, Inc., supra, is misplaced as
it is factually different from the situation herein. She points out that litigation
was not pending or foreseeable when the defendants routinely deleted emails
and text messages in PTSI, Inc. Furthermore, the preservation order in that
case went into effect after the defendants left their employment at PTSI, and
any potentially relevant electronic communications would have occurred while
they were employed. She cites this Court’s acknowledgment that people
routinely delete electronically stored information to free up storage space on
their devices, and that spoliation occurs only if the destruction of relevant
evidence is intentional when litigation is pending or likely, which was not the
case in PTSI, Inc. Even if proportionality was a proper consideration on the
facts in this case, which Ms. Marshall does not concede, the benefit of retaining
the vital videotape evidence far outweighed the burden and expense.
ShopRite argued that there was no spoliation and that no sanction was
warranted because, in following its reasonable retention policy, it did not act
in bad faith. It alleges that PTSI, Inc. is controlling, that the trial court
correctly relied upon it and weighed the eDiscovery proportionality factors
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found in the explanatory comment to Pa.R.C.P. 4009 and Pa. R.C.P. 4011,5 in
concluding that no instruction was warranted. According to ShopRite, Ms.
Marshall’s efforts attempt to distinguish PTSI, Inc. are unpersuasive, and the
trial court did not misapply the proportionality factors or otherwise abuse its
discretion in concluding that the instruction was not warranted.
In the instant case, counsel for Ms. Marshall contacted ShopRite within
two weeks of her fall, advised it of impending litigation, and requested that it
preserve six hours of video surveillance prior to her fall and three hours after
her fall. Thus, ShopRite was on notice to retain the evidence for purposes of
____________________________________________
5 Pa.R.C.P. 4011, entitled “Limitation of Scope of Discovery,” provides:
No discovery, including discovery of electronically stored
information, shall be permitted which
(a) is sought in bad faith;
(b) would cause unreasonable annoyance, embarrassment,
oppression, burden or expense to the deponent or any
person or party;
(c) is beyond the scope of discovery as set forth in Rules 4003.1
through 4003.6;
(d) is prohibited by any law barring disclosure of mediation
communications and mediation documents; or
(e) would require the making of an unreasonable investigation
by the deponent or any party or witness.
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litigation. Although Mr. McCaffery testified that ShopRite’s rule of thumb was
to retain only twenty minutes of tape prior to a fall and twenty minutes
afterwards, it actually preserved thirty-seven minutes of footage prior to Ms.
Marshall’s fall, and twenty minutes after the fall. He offered no explanation
why ShopRite deviated from its typical practice.
At trial, Ms. Marshall took the position that by failing to retain additional
footage prior to her fall, ShopRite intentionally destroyed or failed to preserve
relevant evidence. She maintained that she was prejudiced thereby, and that
ShopRite should have been sanctioned for spoliation. In support of her
contention that the additional video was relevant, she argued that it may have
shown when the spill occurred. At the very least, she contended it would have
been probative as to whether ShopRite’s inspection and safety precautions
were being followed. Ms. Marshall asked the court to instruct the jury that it
could infer “that the destroyed evidence would have been unfavorable to the
offending party.” Rodriguez, supra at 1196.
Despite the deference accorded the trial court in such matters, we find
no factual support in the record for the trial court’s conclusion that no relevant
evidence was destroyed. Furthermore, we find the trial court’s view of
relevant evidence to be unreasonably narrow. Relevant evidence is any
evidence that “has any tendency to make a fact more or less probable.”
Pa.R.E. 401(a). While the trial court’s finding of no bad faith on ShopRite’s
part was relevant in determining whether to impose a sanction, and if so, what
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sanction to impose for spoliation, the absence of bad faith does not mean that
spoliation did not occur
Ms. Marshall was a business visitor of ShopRite at the time of the fall
and the store owed her the highest duty of care. The law is well settled that
a “landowner is under an affirmative duty to protect a business visitor not only
against known dangers but also against those which might be discovered with
reasonable care.” Emge v. Hogosky, 712 A.2d 315, 317 (Pa.Super. 1998)
(citation omitted).
While a possessor of land is subject to liability for physical injury to his
invitees due to a condition on his land, liability is predicated on a showing that
the possessor
(a) knows or by the exercise or reasonable care would discover the
condition, and should realize that it involves an unreasonable risk
to such invitees, and
(b) should expect that they will not discover or realize the danger,
or will fail to protect themselves against it, and
(c) fails to exercise reasonable care to protect them against the
danger.
Campisi v. Acme Mkts., 915 A.2d 117, 119 (Pa.Super. 2006); see also
Restatement (Second) of Torts § 343.
The existence of a dangerous condition on property or the happening of
an accident is not enough to establish liability. A plaintiff, in order to recover
in a slip-and-fall case, must prove that the possessor of the premises knew,
or with the exercise of reasonable care, should have known, of the existence
of the harmful condition. Where a storeowner created the harmful condition,
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he is deemed to have actual or constructive notice of the condition. Zito v.
Merit Outlet Stores, 647 A.2d 573, 574-75 (Pa.Super. 1994). Where,
however, the condition is one caused by a third party, a plaintiff must prove
that the premises owner either knew of the danger and failed to remediate it,
or should have known had it exercised reasonable care and inspected its
premises.
A plaintiff’s burden of proving knowledge or notice of the dangerous
condition is a heavy one. In some instances, the ubiquitous use of video
surveillance to monitor premises open to the public may be useful in meeting
that burden. Video surveillance allows one to rewind and view the events
prior to a slip and fall. It might show the fall, or reveal how, when, and by
whom the dangerous condition was created. In other instances, poor video
quality, camera placement, or the nature of the spill may make it impossible
to see the hazard on the floor, as was the case herein.
Although Mr. McCaffery maintained that it would have been a waste of
time to go back further in time as the substance on the floor was not visible
anyway, we find no support for his assumption. Even where the camera fails
to capture the offending substance on the floor, surveillance video still may
have probative value in a slip-and-fall case. It might show someone dropping
or spilling something on the floor in the area, although the residue is not
visible. The events that occurred well in advance of the plaintiff’s fall may be
relevant to the defendant’s knowledge or constructive notice or to whether
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the defendant exercised reasonable care to keep his premises safe. By
viewing video surveillance, one may be able to observe the people who
frequented the area prior to the fall, perhaps even another person slipping in
the same area. Where, as here, store personnel are identifiable by the color
of their uniforms, the video may be instructive as to when an employee last
entered the area of the dangerous condition. A defendant may be able to
point to such evidence in support of its contention that it inspected the area
at reasonable intervals. Where no store personnel are depicted for a
considerable period, a plaintiff can use the video to argue that the defendant
did not conduct regular inspections of the area prior to the fall. Additionally,
the longer the duration of time store personnel were absent from the area,
the stronger the plaintiff’s argument that the defendant store should be
charged with constructive notice of the danger, i.e., that they would have
discovered the hazardous condition had they inspected the area at reasonable
intervals. Thus, video surveillance of the area for a more extended period
prior to the fall may yield evidence highly probative of whether a premises
owner had notice or whether he exercised reasonable care for the safety of
business invitees.
We find that counsel’s letter placed ShopRite on notice of impending
litigation and that several hours of video surveillance prior to and after the fall
was arguably relevant evidence. Nonetheless, ShopRite consciously decided
to preserve only a fraction of the video requested because, as a “rule of
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thumb,” it usually retained only twenty minutes of video prior to a fall, and
twenty minutes after.6 Furthermore, in this case, it 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. According to Mr. McCaffery, Loss
Prevention people actually clip the video. He disavowed any knowledge of
who made the decision to capture that particular timeframe, but “[i]t wasn’t
me.” N.T. Jury Trial, 1/13/17, at 33.
Notably, the thirty-seven minutes prior to Ms. Marshall’s fall did not even
encompass all of 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. Nonetheless, ShopRite unilaterally determined that there was no
relevant evidence on the deleted tape, and the court credited that conclusion.
____________________________________________
6 Mr. McCaffery testified that, “very rarely” are they able to pinpoint from the
surveillance video when something gets on the floor. N.T. Jury Trial, 1/13/17,
at 46. He added that the policy is to take photographs of spills and forward
them to corporate. Id. at 47. Rosanna Feliz, a ShopRite employee, testified
that she took photographs of the area where Ms. Marshall fell, and that she
remembered a mark on the floor. She downloaded the photographs to the
computer, and forwarded them to Human Resources. She stated at trial that
she had no idea as to the whereabouts of the photographs; Mr. McCaffery
stated that he looked for the photographs, but was unable to find them. Id.
at 48.
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The record simply does not support the trial court’s finding that no relevant
evidence was destroyed.
We find that the video surveillance tape depicting the events in the
several hours prior to her fall was relevant for showing far more than the
offending substance on the floor.7 The trial court’s finding that there was no
spoliation because ShopRite did not act in bad faith is based on an incorrect
application of the doctrine. Spoliation may be negligent, reckless, or
intentional; a party’s bad faith, or lack of it, in the destruction of potentially
relevant evidence goes to whether and what type of sanction should be
imposed, not whether spoliation occurred.8 See Mt. Olivet, supra at 1270
(‘[T]he fault of the party who altered or destroyed the evidence, requires
consideration of two components, the extent of the offending party’s duty or
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7 We agree with the trial court that the scope of relevant evidence is not
defined by the plaintiff’s request. However, neither is it defined by the “rule
of thumb” of the premises owner. Our rules governing the scope of discovery
generally, Pa.R.C.P. 4003.1 et seq., are instructive in this regard. We permit
discovery of any matter, not privileged, which is relevant to the subject matter
of the pending action. Relevance includes evidence that may relate to either
the claim or a defense, even if it is not admissible, but is calculated to lead to
admissible evidence.
8 Although the trial court found no bad faith on the part of ShopRite, the record
arguably supports a contrary finding based on ShopRite’s failure to notify Ms.
Marshall’s counsel of its retention policy and its intention to preserve only a
portion of the requested video, or offer to make the tape available for counsel’s
viewing prior to its destruction. See Mount Olivet Tabernacle v. Edwin L.
Wiegand Div., 781 A.2d 1263, 1271 (Pa.Super. 2001) (recognizing that
although “the scope of the duty to preserve evidence is not boundless[,]” at a
minimum, an interested party should be provided with an opportunity to
inspect the evidence).
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responsibility to preserve the relevant evidence, and the presence of absence
of bad faith.”). ShopRite unilaterally decided not to preserve arguably
relevant evidence, and that constituted spoliation.
Finally, we find misplaced the trial court’s reliance upon our decision in
PTSI, Inc., as the basis for applying eDiscovery proportionality factors on the
facts herein. The issue in PTSI, Inc. was whether the trial court erred in
refusing to sanction defendants for their routine deletion of emails and text
messages that were subject to a preservation order and sought in discovery.
After considering the scope of the litigation, the importance and complexity of
the issues concerning the electronically stored information, the trial court
concluded that these factors did “not weigh in favor of granting any discovery
sanctions.” Id. at 317.
Although this Court acknowledged the trial court’s proportionality
analysis in PTSI, Inc., it was unnecessary for our resolution of the issue.
Instead, we affirmed the trial court’s judgment that no sanctions were
warranted based on the following facts: there was no pending or foreseeable
litigation and no preservation order in effect at the time when relevant emails
and text messages were deleted; the deletion of electronic information was
routine, not motivated by bad faith; and only non-relevant information was
deleted, much of which could be obtained from other sources.
In contrast to the facts in PTSI, Inc., ShopRite had notice of an
impending lawsuit and that the video surveillance was relevant. ShopRite
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unilaterally chose to preserve only a small fraction of the requested video and
delete the remainder. At the very least, the deleted video footage was
probative evidence of the condition of the premises prior to Ms. Marshall’s fall,
as well as ShopRite’s due care, or lack of it, in keeping its premises safe for
invitees. Similar evidence could not be obtained from any other source. Thus,
we conclude that there is no legal or factual support for the trial court’s finding
that no relevant evidence was destroyed.
As we stated in Mt. Olivet, supra at 1269 (quoting Nation-Wide
Check Corp. v. Forest Hills Distributors, Inc., 692 F.2d 214, 218 (1st Cir.
1982)), “[s]poliation sanctions arise out of ‘the common sense observation
that a party who has notice that evidence is relevant to litigation and who
proceeds to destroy evidence is more likely to have been threatened by that
evidence than is a party in the same position who does not destroy the
evidence.’” Ms. Marshall asked the court for the least severe spoliation
sanction, an adverse inference instruction. On the facts herein, it was
warranted, and the court abused its discretion in refusing the charge.
Judgment vacated. Case remanded for a new trial. Jurisdiction
relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/19/19
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