Marshall, H. v. Brown's IA, LLC

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

____________________________________________

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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