The Pennsylvania Supreme Court has declined to review a Superior Court ruling that a grocery store spoliated evidence when it deleted portions of a surveillance video the plaintiff had requested in a slip-and-fall case, letting stand a precedential decision that one civil litigator said should give pause to business owners and lawyers on both sides of the courtroom aisle.

Last March, in Marshall v. Brown's IA, a three-judge Superior Court 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, 2019, published opinion, Marshall slipped on water and fell in the produce aisle of the Island Avenue ShopRite in Philadelphia, aggravating a preexisting 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 in Philadelphia, could not be reached for comment on the Supreme Court's March 3 allocatur denial.

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.

Litigator Mark DiAntonio of McCann Law in Philadelphia, who was not involved in Marshall but has previously written about the potential ramifications of the case, said he was surprised the Supreme Court denied allocatur because the Superior Court's ruling is likely to make discovery more arduous in injury cases and create more work for trial courts.

Philadelphia's Discovery Court Program, for example, may see more activity, as parties wrangle over the scope of surveillance video requests.

"The message that's sent [by the Marshall decision] is 'when in doubt, make a really broad request and make the camera owner either comply or refuse or give something less than everything you're asking for and then go to Discovery Court and state your case,'" DiAntonio said. "I can see a lot more trips to Discovery Court as a result of that. There's really no incentive for the requester to limit their request."

And while plaintiffs are often the ones seeking video evidence in these cases, there are sometimes circumstances where the defense is the requester, so the Marshall ruling cuts both ways, according to DiAntonio.

DiAntonio also noted that many of these requests are made pre-litigation, meaning the owner of the video footage won't have the benefit of asking a judge or discovery master to define the parameters. That means business owners are going to need to be more diligent about preserving video evidence when they're aware of an incident, such as a slip-and-fall, that could potentially give rise to litigation, DiAntonio said.

The Marshall decision, he added, also reinforces the need for businesses to have "a well-thought-out video retention policy and to have somebody in charge of it who can explain why you came up with the policy and how you methodically follow it."

"That's going to put you in a much stronger position if, ultimately, you have to explain why you didn't save what you think is an onerous amount of video footage," he said.

Being prepared for discovery requests of video evidence could mean the difference between winning and losing a case, DiAntonio said.

"The sanction of spoliation is devastating," he said. "If you don't preserve video evidence, the presumption can be that it happened just like the person said it did. How do you overcome that?"