Credit: Thanwarat Tangthawilap/Shutterstock.com

A grocery store that deleted surveillance footage of all but about 37 minutes before and 20 minutes after a slip-and-fall spoliated evidence because by that time it had already received a letter from plaintiffs counsel requesting footage of a significantly longer time span, the Pennsylvania Superior Court ruled.

In Marshall v. Brown's IA, a three-judge appeals panel ordered a new trial for plaintiff Harriet Marshall because the Philadelphia Court of Common Pleas judge who oversaw her first trial failed to give the jury an adverse inference instruction based on defendant ShopRite's  spoliation of evidence.

According to the panel's March 27 published opinion, Marshall slipped on water and fell in the produce aisle of the Island Avenue ShopRite in Philadelphia, aggravating a pre-existing injury to her hip and back. About two weeks later, ShopRite received a letter from Marshall's attorney requesting footage of the six hours before and the three hours after Marshall's fall.

The letter, according to the opinion, warned, “'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.'”

ShopRite, however, preserved only about 37 minutes before and 20 minutes after Marshall's fall, the court said.

The case proceeded to a trial and a jury found in favor of the defense. Marshall appealed, arguing that she was prejudiced by the trial court's refusal to give a spoliation instruction to the jury.

The appeals panel, led by Judge Mary Jane Bowes, agreed, finding that the letter from Marshall's attorney had “placed ShopRite on notice to preserve the video surveillance prior to and after the fall as it was arguably relevant to impending litigation” and that ShopRite had ”consciously decided to preserve only a fraction of the video requested because, as a 'rule of thumb,' it usually retained only 20 minutes of video prior to a fall, and 20 minutes after.”

“ShopRite's conduct herein constituted spoliation,” Bowes said. “We agree with Ms. Marshall 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. Additional probative value lay in demonstrating what steps, if any, ShopRite and its employees took to make the premises reasonably safe for business visitors such as Ms. Marshall in the hours leading up to the fall. Arguably, such evidence was relevant to showing knowledge, constructive notice, and a lack of care for the safety of invitees.”

Bowes was joined by Judges Victor Stabile and Maria McLaughlin.

The appeals panel also took issue with the trial court's determination that ShopRite did not spoliate evidence because it did not act in bad faith.

“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,” Bowes said, adding, “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.”

Counsel for Marshall, Marc Greenfield of Spear, Greenfield, Richman Weitz & Taggart in Philadelphia, could not be reached for comment.

Thomas Bradley of McBreen & Kopko in Philadelphia represented Brown's IA, which owns the Island Avenue ShopRite. He also could not be reached for comment.

(Copies of the 15-page opinion in Marshall v. Brown's IA LLC, PICS No. 19-03883, are available at http://at.law.com/PICS.)