J. A15004/16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

DIANE SCOTT,                            :    IN THE SUPERIOR COURT OF
                                        :          PENNSYLVANIA
                      Appellant         :
                                        :
                 v.                     :
                                        :         No. 2237 EDA 2015
ATLANTA RESTAURANT PARTNERS,            :
LLC, T/A/D/B/A T.G.I. FRIDAY’S          :


             Appeal from the Judgment Entered July 14, 2015,
           in the Court of Common Pleas of Philadelphia County
                      Civil Division at No. 140202800


BEFORE: FORD ELLIOTT, P.J.E., DUBOW AND JENKINS, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:            FILED DECEMBER 06, 2016

     Diane Scott appeals the judgment entered by the Court of Common

Pleas of Philadelphia County after a non-jury trial in favor of Atlanta

Restaurant Partners, LLC, T/A/D/B/A T.G.I. FRIDAY’S and against appellant.

     The facts as recounted by the trial court are as follows:

                 On October 12, 2012, Appellant, accompanied
           by her two daughters and granddaughter decided to
           go to dinner at the T.G.I. Friday’s located on City
           Line Avenue, Philadelphia, PA which is owned and
           operated by [appellee]. The dinner was to celebrate
           that Appellant was finally feeling good following
           surgery for a blood clot and subsequent physical
           therapy. Upon entering the restaurant along with
           her granddaughter, she took a couple of steps and
           tripped over a floor rug reinjuring the nearly healed
           leg and injuring other parts of her body. Appellant
           claimed the rug had some bump in it that was almost
           3-4 inches high and this caused her to trip and fall.
           Appellant’s daughter, Era Scott, did not witness the
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            accident itself but entered the restaurant shortly
            thereafter. She saw a ridge no more than 2 inches
            high and a couple of other puckers.

                   Unidentified     non-employee       individuals
            ministered [to] the Appellant following the fall. An
            ambulance arrived 10-15 minutes after the accident
            and it took Appellant to Lankenau Hospital where she
            was examined by staff and given certain medical
            tests.

Trial court opinion, 10/7/15 at 2 (citations to record omitted).

      The trial court further explained:

                  [Appellant] brought this action which arose
            from a slip and fall taking place [in] [appellee’s]
            restaurant on October 12, 2012.            Relevantly,
            [appellant] alleged in a motion in limine due to
            spoliation of evidence from the [appellee’s]
            destruction of pertinent videotape containing video
            of the rug upon which the Appellant tripped and
            adjacent area, prior to and at the time of the
            accident. Appell[ant] unsuccessfully argued for a
            sanction against [appellee] of either judgment
            against [appellee] or [appellee] had notice of the
            defect. This court rejected [appellant’s] proposed
            alternatives and instead, imposed a sanction of an
            adverse inference that there was a defect and
            [appellee] was therefore responsible for the injury.

Id. at 1.

      Following the verdict, appellant moved for post-trial relief. On July 13,

2015, the trial court denied the post-trial motions.        This timely appeal

followed.

      Appellant raises the following issues for this court’s review:

            I.    Did the trial court err by refusing to enter
                  judgment against [appellee] on the issue of



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                   liability, as a sanction for [appellee’s] flagrant
                   spoliation of evidence?

            II.    Even given the trial court’s ruling granting only
                   an adverse inference due to [appellee’s]
                   spoliation of evidence, did that inference, when
                   taken together with other evidence of record,
                   including the testimony of [appellee’s] own
                   witnesses, entitle [appellant] to judgment as a
                   matter of law on the issue of liability?

            III.   Did the trial court err in failing to vacate the
                   verdict for [appellee] as against the weight of
                   the evidence?

Appellant’s brief at 3.

      Initially, appellant contends that the trial court erred when it refused

to enter judgment against appellee on the issue of liability due to appellee’s

flagrant spoliation of the evidence.

                   “When reviewing a court’s decision to grant or
            deny a spoliation sanction, we must determine
            whether the court abused its discretion.” Mount
            Olivet Tabernacle Church v. Edwin L. Wiegand
            Division, 781 A.2d 1263, 1269 (Pa.Super. 2001)
            (citing Croydon Plastics Co. v. Lower Bucks
            Cooling & Heating, 698 A.2d 625, 629 (Pa.Super.
            1997) (recognizing that “[t]he decision whether to
            sanction a party, and if so the severity of such
            sanction, is vested in the sound discretion of the trial
            court”)). Such 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].”
            Mount Olivet, 781 A.2d at 1269 (quoting
            Nation-Wide Check Corp. v. Forest Hills
            Distributors, Inc., 692 F.2d 214, 218 (1st Cir.
            1982)). Our courts have recognized accordingly that
            one potential remedy for the loss or destruction of


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           evidence by the party controlling it is to allow the
           jury to apply its common sense and draw an
           “adverse inference” against that party.          See
           Schroeder v. Commonwealth of Pa., Dep’t of
           Transp., 551 Pa. 243, 710 A.2d 23, 28 (1998).
           Although award of summary judgment against the
           offending party remains an option in some cases, its
           severity makes it an inappropriate remedy for all but
           the most egregious conduct.       See Tenaglia v.
           Proctor & Gamble, Inc., 737 A.2d 306, 308
           (Pa.Super. 1999) (“[S]ummary judgment is not
           mandatory simply because the plaintiff bears some
           degree of fault for the failure to preserve the
           product.”).

Creazzo v. Medtronic, Inc., 903 A.2d 24, 28-29 (Pa.Super. 2006).

           To determine the appropriate sanction for spoliation,
           the trial court must weigh three factors:

                 (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.

           Mount Olivet, 781 A.2d at 1269-70 (quoting
           Schmid v. Milwaukee Elec. Tool Corp., 13 F.3d
           76, 79 (3d Cir.1994)). In this context, evaluation of
           the first prong, “the 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.
           See Mt. Olivet, 781 A.2d at 1270. The duty prong,
           in turn, is established where: “(1) the plaintiff knows
           that litigation against the defendants is pending or
           likely; and (2) it is foreseeable that discarding the
           evidence would be prejudicial to the defendants.”
           Id. at 1270-71.


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Creazzo, 903 A.2d at 29.

     Here, the evidence in question was the tape produced by the video

surveillance system that was used to film the entrance to the restaurant

where appellant slipped. Michael Rogers (“Rogers”), the general manager of

the restaurant, testified that due to the way the video system operated, the

surveillance record would be overwritten in approximately seven to nine

days. (Notes of testimony, 3/12/15 at 400-401.) Rogers did not view the

video, though the manager on duty, Teresa Burnham (“Burnham”),

apparently did and may have preserved a copy of the footage on her own

cell phone. At the time of trial, Burnham no longer worked for appellee and

could not be located. (Id. at 421-422.)

     In her argument, appellant asserts that she satisfied the three prongs

of the Mount Olivet test. First, she argues that the fault was entirely on

the part of appellee. Appellant, her daughters, and her granddaughter were

business invitees and did not have any knowledge of the video and did not

have any way to preserve it.    On the other hand, Rogers had seven to

nine days to copy the relevant video footage onto a more durable format or

possibly to download the footage from Burnham’s cell phone.          Rogers

testified that appellee had no company policy regarding the surveillance of

the premises and that the reason for the surveillance cameras was to deter

theft and robberies. (Id. at 400-401.) However, Rogers explained that the

surveillance video would not depict the rug which allegedly caused appellant


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to fall because it was designed to view the faces of people who came into

the restaurant and later robbed it. (Id. at 506.)

      The trial court determined that appellant was entitled to an adverse

inference; so therefore, the trial court found that there was fault on the part

of the appellee in destroying the evidence and that it was foreseeable that

the destruction of the evidence would be prejudicial to appellee. While the

entry of summary judgment is permitted as a sanction in spoliation cases,

the severity of this sanction makes it an inappropriate remedy in all but the

most egregious cases. See Tenaglia v. Proctor & Gamble, Inc., 737 A.2d

306, 308 (Pa.Super. 1999).

      For instance, in Parr v. Ford Motor Co., 109 A.3d 682 (Pa.Super.

2014), appeal denied, 123 A.3d 331 (Pa. 2015), cert. denied, 136 S.Ct.

557 (2015), Joseph and April Parr owned a 2001 Ford Excursion which they

purchased used in 2007. On July 21, 2009, a van ran a stop sign and struck

the Ford Excursion which caused it to spin clockwise, hit a guardrail, and roll

down a 19-foot embankment. Joseph Parr was driving the Excursion. His

wife, April Parr, their three children, and Joseph Parr’s mother were also in

the vehicle. Some of the occupants sustained only minor injuries. However,

Samantha Parr, a daughter, sustained a fractured skull, broken collarbone,

fractured eye orbital, a lacerated liver, and facial lacerations.   April Parr

suffered a spinal cord injury such that she was quadriplegic. Id. at 686-687.




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      Emergency responders were forced to use the jaws of life to extract

April Parr from the vehicle.    That process destroyed the roof and pillar

structures of the vehicle. Shortly thereafter, the Excursion was released to

the Parr’s insurer. The Excursion was then sold and destroyed. The Parrs

commenced an action against Ford Motor Company and the car dealer who

sold them the Excursion and alleged that the injuries suffered by April and

Samantha Parr were the result of the crushing of the roof when it rolled

down the embankment. The Parrs alleged that the roof and restraint system

were defectively designed and alleged other claims based in negligence.

Following a trial, the jury returned a verdict against the Parrs in the Court of

Common Pleas of Philadelphia County. Id. The Parrs appealed to this court,

which affirmed.      Parr v. Ford Motor Company, No. 2793 EDA 2012,

unpublished memorandum (Pa.Super. filed December 24, 2013). The Parrs

moved for reargument, which this court granted. Parr, 109 A.3d at 687.

      One of the issues raised by the Parrs was that the Court of Common

Pleas of Philadelphia County erred and abused its discretion when it denied

the Parrs’ motion in limine to preclude Ford Motor Company from

presenting evidence that the Excursion was not preserved and obtaining a

spoliation charge.    The Parrs argued that the trial court erred when it

presented a spoliation charge to the jury and permitted the introduction of

spoliation evidence where Ford Motor Company was unable to show any

prejudice that resulted from the destruction of the Excursion. Ford asserted



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that the jury could infer that the Excursion contained evidence unfavorable

to the Parrs who failed to preserve the vehicle. Ford argued that its inability

to examine the Excursion negatively impacted the analyses by their experts.

The Court of Common Pleas of Philadelphia County issued a permissive

adverse inference instruction to the jury that it could draw a negative

inference against the Parrs from the destruction of the Excursion.      Id. at

700-701.

      This court determined that the Parrs were aware the Excursion could

be used as evidence and that the destruction of the Excursion prejudiced

Ford Motor Company. Ford Motor Company had sought a grant of summary

judgment by the Court of Common Pleas of Philadelphia County as a

sanction for the spoliation of evidence. This court determined that that was

a very extreme measure and concluded that the Court of Common Pleas of

Philadelphia County did not abuse its discretion when it issued the lesser

permissive adverse inference instruction. Id. at 703-704.

      Here, the trial court also issued an adverse inference instruction to

itself as there was no jury.   The destruction of the Excursion in Parr was

potentially much more prejudicial to Ford Motor Company than the

destruction of the surveillance videotape was here.     Given that this court

determined in Parr that there was no abuse of discretion when an adverse

inference was issued rather than summary judgment, this court concludes

that the trial court did not commit an abuse of discretion when it sanctioned



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appellee with an adverse inference rather than a harsher penalty favored by

appellant.

      Turning to the next prong, appellant argues that it is plain that the

lack of video surveillance seriously prejudiced her from presenting her case.

The Restatement (Second) of Torts § 343 defines the duty that a possessor

of property owes to a business invitee as follows:

             A possessor of land is subject to liability for physical
             harm caused to his invitees by a condition on the
             land, if but only if, he:

             (a)   knows or by the exercise of 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.

Restatement (Second) of Torts § 343 (1965).

      Appellant argues that, under her theory of the case, the mat or rug in

appellee’s   entranceway     was   seriously   defective   and   presented   an

unreasonable tripping hazard. Appellant also alleged that the hazard could

not be remedied without removing the mat.          She believes that the video

would have corroborated her theory and would help make her testimony

appear more credible in the face of cross-examination which was designed to

create doubts as to whether her fall was caused by the condition of the mat



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and was instead caused by her own physical condition.            According to

appellant, the video surveillance record would have clearly settled the issues

of whether appellant tripped on the mat, whether the entranceway was

brightly lit or dark, and whether appellant was entering or leaving the

restaurant.    Similarly, appellant argues that the surveillance video would

establish that appellee had constructive notice of the defective mat. When

attempting to establish constructive notice, a plaintiff does not have to

produce testimony as to how long a defect existed if “(1) the defect is of a

type with an inherently sustained duration, as opposed to a transitory spill

which could have occurred an instant before the accident; and (2) a witness

saw the defect immediately before or after the accident.”            Neve v.

Insalaco’s, 771 A.2d 786, 791 (Pa.Super. 2001).             While there was

conflicting evidence from the two sides concerning the condition of the mat,

appellant argues that the surveillance video would have recorded a woman

clad in Muslim garb attempting to get the mat to lie flat after appellant fell.

This video would have shown that the defect in the mat was of a type with

an inherently sustained duration as opposed to a transitory condition caused

by foot traffic in the foyer.

      While this court agrees that appellant may have suffered some

prejudice as a result of the spoliation of this evidence, this court is not

persuaded that the trial court abused its discretion when it granted an

adverse inference as opposed to a more severe sanction favored by



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appellant.   Once again looking to Parr, this court determined that Ford

Motor Company was clearly prejudiced by the destruction of the Excursion

because multiple expert witnesses stated that their analyses would have

been greatly aided had they been able to examine the Excursion. Even with

this great prejudice, the court found no abuse of discretion when the Court

of Common Pleas of Philadelphia County issued only a permissive adverse

inference.   Parr, 109 A.3d at 703-704.      Here, where Rogers testified that

the surveillance video would not have shown the mat itself, this court

concludes that the prejudice was less than that suffered in Parr where this

court found no abuse of discretion for the imposition of an adverse

inference.   Consequently, this court concludes there was no abuse of

discretion based on the prejudice suffered here.

       As to the third prong of Mount Olivet, appellant argues that the

adoption of the limited adverse inference imposed by the trial court did not

measure up to the seriousness of appellee’s failure to preserve the video

surveillance evidence. Appellant argues that the seriousness of this action

required the trial judge to enter judgment in appellant’s favor as a matter of

law.   While the entry of summary judgment is permitted as a sanction in

spoliation cases, the severity of this sanction makes it an inappropriate

remedy in all but the most egregious cases. See Tenaglia v. Proctor &

Gamble, Inc., 737 A.2d 306, 308 (Pa.Super. 1999).         Given that the trial

court apparently accepted the testimony that the surveillance videotape



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would not include pictures of the mat in question and there is no evidence

that the video was destroyed to avoid its use at trial, the trial court did not

abuse its discretion when it imposed the sanction that it did. While appellant

can illustrate that she was entitled to the benefit of a sanction, she does not

persuade this court that the trial court abused its discretion when it imposed

an adverse inference sanction.

       Appellant next contends that the adverse inference combined with

other evidence of record, including the testimony of appellee’s own

witnesses, entitled appellant to judgment as a matter of law on the issue of

liability.   Specifically, appellant argues that her testimony that she tripped

and fell due to a defect in the mat combined with the testimony of Rogers

and Rasheen Davis (“Davis”), the host for appellee, met the requirements

for her cause of action.

               When reviewing the propriety of an order granting or
               denying judgment notwithstanding the verdict, we
               must determine whether there is sufficient
               competent evidence to sustain the verdict. Johnson
               v. Hyundai Motor America, 698 A.2d 631, 635
               (Pa.Super.1997), appeal denied, 551 Pa. 704, 712
               A.2d 286 (1998) (citations omitted); Rowinsky v.
               Sperling, 452 Pa.Super. 215, 681 A.2d 785, 788
               (1996), appeal denied, 547 Pa. 738, 690 A.2d 237
               (1997) (quoting Samuel Rappaport Family
               Partnership v. Meridian Bank, 441 Pa.Super. 194,
               657 A.2d 17, 20 (1995)).        We must view the
               evidence in the light most favorable to the verdict
               winner and give the verdict winner the benefit of
               every reasonable inference arising therefrom while
               rejecting all unfavorable testimony and inferences.
               Johnson, supra at 635; Rowinsky, supra at 788.
               We apply this standard in all cases challenging the


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            grant of a motion for J.N.O.V. Shearer v. Reed,
            286 Pa.Super. 188, 428 A.2d 635, 637 (1981).

                  Pennsylvania law makes clear that a judgment
            notwithstanding the verdict is proper only in clear
            cases where the facts are such that no two
            reasonable minds could disagree that the verdict was
            improper.    Johnson, supra at 635; Rowinsky,
            supra at 788. Questions of credibility and conflicts
            in evidence are for the fact-finder to resolve.
            Commonwealth, Department of Transportation
            v. Patton, 546 Pa. 562, 568, 686 A.2d 1302, 1305
            (1997); Miller v. Brass Rail Tavern, Inc., 702
            A.2d 1072, 1076 (Pa.Super.1997) (citation omitted).
            This Court will not substitute its judgment based
            upon a cold record for that of the fact-finder where
            issues of credibility and weight are concerned. Id.

Birth Center v. St. Paul Companies, Inc., 727 A.2d 1144, 1154-1155

(Pa.Super. 1999).

      With respect to this issue, the trial court, as the trier-of-fact,

concluded that appellant failed to establish that appellee had actual or

constructive notice of any harmful condition in the mat:

            Notwithstanding      [a]ppellant’s  assertions     the
            [appellee’s] witness who was present at the time of
            the accident, Mr. Rasheen Davis, never admitted to
            any knowledge of any defect in the rug. Indeed,
            Mr. Davis repeatedly denied under questioning from
            both [a]ppellant and [appellee] counsel that there
            was any defect in the rug which he checked every
            15 minutes as part of his job. Appellant did not
            present sufficient credible evidence to establish that
            [appellee] had actual or constructive notice of a
            dangerous condition found in the rug. Therefore,
            Appellant did not meet its burden of proof and the
            Court found in favor of the [appellee]. As such, the
            Court properly adjudicated the matter.

Trial court opinion, 10/7/15 at 6-7 (citation omitted).


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        As finder-of-fact, the trial court has the authority to make credibility

determinations.      This appellate court will not disturb those credibility

determinations.     Holt v. Navarro, 932 A.2d 915, 919 (Pa.Super. 2007),

appeal denied, 951 A.2d 1164 (Pa. 2008). Rogers testified that had this

alleged defect been present, it would have been noticed by appellee’s

employees very quickly. (Notes of testimony, 3/12/15 at 460-461.) Rogers

also testified that he never saw mats at the City Line Avenue Friday’s in the

condition which appellant described. (Id. at 444.) He also never saw the

mats rise up in any direction. (Id. at 458.) Davis, the host on duty at the

time, testified that he checked the mat at the entrance every 15 minutes or

so but did not see any irregularities with it. (Notes of testimony, 3/11/15 at

323, 351-352.)

        Although appellant asserts that the testimony of Rogers and Davis

supports her position, it appears the reverse is true. Appellant has failed to

establish that she was entitled to judgment in her favor as she failed to

establish that no two reasonable minds could disagree that the verdict was

improper.

        Finally, appellant argues that the trial court erred when it failed to

vacate the verdict for appellee as against the weight of the evidence.

              In determining whether the jury’s[1] verdict was
              against the weight of the evidence, we note our
              standard of review:


1
    Here, there was no jury as the trial court conducted a non-jury trial.


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                  A new trial based on weight of the
                  evidence issues will not be granted
                  unless the verdict is so contrary to the
                  evidence as to shock one’s sense of
                  justice; a mere conflict in testimony will
                  not suffice as grounds for a new trial.
                  Upon review, the test is not whether this
                  Court would have reached the same
                  result on the evidence presented, but,
                  rather, after due consideration of the
                  evidence found credible . . . and viewing
                  the evidence in the light most favorable
                  to the verdict winner, whether the court
                  could reasonably have reached its
                  conclusion. Our standard of review in
                  denying a motion for a new trial is to
                  decide whether the trial court committed
                  an error of law which controlled the
                  outcome of the case or committed an
                  abuse of discretion.

Elliott v. Ionta, 869 A.2d 502, 504 (Pa.Super. 2005), quoting Daniel v.

William R. Drach Co., Inc., 849 A.2d 1265, 1267-1268 (Pa.Super. 2004)

(citations omitted).

      Essentially, appellant here is just making another argument that Davis’

testimony, that he did not notice any defect in the mat when he checked it

every 15 minutes, was not credible and that the trial court relied too heavily

on this testimony. Appellant challenges the credibility determination of the

fact-finder. Appellant fails to establish that the trial court’s verdict shocked

one’s sense of justice or that the trial court committed an error of law or an

abuse of discretion.

      Judgment affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/6/2016




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