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The Pennsylvania Superior Court has ruled that missing video surveillance footage of a trip-and-fall that occurred at a laundromat⁠—requested by the plaintiff after it had already been overwritten⁠—did not constitute spoliation of evidence.

A three-judge panel consisting of Judges Anne Lazarus, Deborah Kunselman and Daniel McCaffrey upheld a Lehigh County court's ruling in Monarca v. Annie's Express Laundry that a jury charge on spoliation of evidence was not needed in plaintiff Tanya Monarca's lawsuit against Annie's Express Laundry.

Monarca tripped and fell on a bucket at the laundromat, according to Lazarus' nonprecedential June 10 opinion. A surveillance camera monitored the area and the recordings were preserved for a period of two weeks before being automatically overwritten. The plaintiff's counsel requested the owner preserve video footage through a letter sent 15 days after the incident.

Monarca argued the court should give a spoliation instruction to the jury, but was denied. She appealed, pointing to Marshall v. Brown's IA, a case in which the Superior Court ruled defendant ShopRite should have been sanctioned for spoliation of evidence after giving only partial surveillance evidence of a slip-and-fall.

Lazarus, however, said the circumstances in Monarca's case were different.

"Here, Monarca failed to establish that Annie's Express negligently or otherwise intentionally permitted the destruction of evidence; indeed, Annie's Express made efforts to preserve relevant footage of the accident on the date it occurred, '[r]ather than permitting the footage to get overwritten, and without any actual indication that a lawsuit was pending,'" Lazarus said.

"The defendant in Marshall, in contrast, consciously disregarded plaintiff's request for 'arguably relevant evidence' during discovery," she continued, "turning over approximately 10% of the video surveillance footage plaintiff sought after having been notified of impending litigation and specifically warned that failing to turn over the requested footage would result in an adverse inference."

Lazarus added that the trial court also found "Monarca was not prejudiced as additional footage would not have changed the outcome of the trial given that the jury repeatedly saw footage establishing the location of the bucket prior to Monarca's arrival and both parties testified that they knew how and where the bucket was situated at the time of the incident."

Annie's Express is represented by Andrew Kessler of Wood Smith Henning & Berman, who said "We're very pleased with the ruling. We tried to draw a distinction between the Marshall decision and this one. Our client preserved what he thought was reasonable."

Monarca is represented by Bethlehem-based solo lawyer Michael Snover, who also did not respond to a request for comment.