J-A27001-18

                                2019 PA Super 94

 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 MARCH 27, 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 McCaffrey, 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 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.”

Gavin v. Loeffelbein, 161 A.3d 340, 353-54 (Pa.Super. 2017) (quoting Parr,

supra at 702).

      In the instant case, counsel for Ms. Marshall contacted ShopRite within

two weeks of her fall, advised it of impending litigation, and requested that

the store preserve six hours of video surveillance prior to the fall and three

hours after the fall. Although Mr. McCaffery testified that ShopRite’s rule of

thumb was to retain only twenty minutes of tape prior to the fall and twenty

minutes after the fall, it actually preserved thirty-seven minutes of footage


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prior to Ms. Marshall’s fall, and twenty minutes after the fall. He offered no

explanation why ShopRite deviated from its typical practice herein.

      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.

      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. Furthermore, according to Mr. McCaffery, it would have been a

waste of time to go back further in time as the substance on floor was not

visible anyway. In other words, ShopRite did not deny that it intentionally

failed to preserve part of the video evidence; it simply maintained that the

portion it deleted had no evidentiary value. The trial court concluded, “[b]ased

upon Mr. McCaffery’s testimony and the surveillance video itself, . . . that no

relevant evidence was spoliated.”         Trial Court Opinion, 4/4/18, at 6.

Furthermore, it found that ShopRite did not act in bad faith.


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      For the reasons that follow, we find that the trial court took an

unreasonably narrow view of “relevant evidence” in concluding that no

spoliation occurred in this premises liability case. Relevant evidence is any

evidence that “has any tendency to make a fact more or less probable.”

Pa.R.E. 401(a). Furthermore, its finding of no bad faith on ShopRite’s part

was relevant in determining the severity of the sanction to impose for

spoliation, but it did not negate or excuse the spoliation that occurred.

      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.

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      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,

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.

      However, even where the camera fails to capture the precise cause of

the spill or show the offending substance on the floor, surveillance video still

may have probative value in a slip-and-fall case.       It might show someone


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dropping 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 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 to preserve the

video surveillance prior to and after the fall as it was arguably relevant to


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impending litigation. Nonetheless, ShopRite consciously decided to preserve

only a fraction of the video requested because, as a “rule of thumb,” it usually

retained only twenty minutes of video prior to a fall, and twenty minutes

after.4 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

include 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.



____________________________________________


4 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 of 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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Nonetheless, ShopRite unilaterally determined that there was no relevant

evidence on the deleted tape.

       ShopRite’s conduct herein constituted spoliation.      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.5 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.



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5 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.

At the same time, our discovery rules bar discovery of electronically stored
information that is sought in bad faith, or would cause “unreasonable
annoyance, embarrassment, oppression, burden or expense to the deponent
or any person or party.” Pa.R.C.P. 4011. There was testimony that preserving
nine hours of video was time consuming and expensive. The parties hereto
may have been able to reach a reasonable agreement had ShopRite
communicated to Ms. Marshall’s counsel that it would not preserve the amount
of video requested, and why, and permitted Ms. Marshall’s counsel to view the
requested footage in its entirety prior to its deletion. If not, either party could
have asked the court to resolve the dispute.



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       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 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.6 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 responsibility to preserve the relevant evidence, and

the presence or absence of bad faith.”). .ShopRite unilaterally decided not to

preserve arguably relevant evidence, and that constituted spoliation.

       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


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6 Although the trial court found no bad faith on the part of ShopRite, the record
arguably supports a contrary finding. ShopRite did not notify Ms. Marshall’s
counsel of its retention policy or that it did not intend to preserve the
requested video evidence. Nor did ShopRite offer to make the tape available
for counsel’s viewing prior to its destruction. ShopRite could have sought a
judicial ruling on the reasonableness of Ms. Marshall’s demand prior to the
deletion of the requested footage in light of the time and expense required to
preserve it. Instead, ShopRite relied upon a vague “rule of thumb” to justify
its unilateral decision to retain only minimal video prior to the fall, and even
then, inexplicably did not adhere to it.

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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.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/27/19




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