213 A.3d 263
Pa. Super. Ct.2019Background
- Harriet Marshall slipped and fell in a ShopRite produce aisle on August 6, 2014; she alleged aggravation of preexisting hip/back injuries.
- Two weeks after the accident Marshall’s counsel sent ShopRite a preservation letter requesting six hours of pre-incident and three hours of post-incident surveillance video.
- ShopRite retained only 37 minutes before and ~20 minutes after the fall; remaining footage was automatically overwritten under its retention practice.
- ShopRite witnesses testified their “rule of thumb” was to preserve ~20 minutes before/after and that the retained video did not show the liquid on the floor.
- Marshall argued the unpreserved footage was relevant to notice and ShopRite’s inspection practices and requested an adverse-inference (spoliation) jury instruction; the trial court denied the instruction and the jury ruled for ShopRite.
- The Superior Court vacated the judgment and remanded for a new trial, holding the trial court abused its discretion in refusing the adverse-inference charge.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether ShopRite’s failure to preserve additional surveillance footage constituted spoliation warranting an adverse-inference jury instruction | Marshall: Letter put ShopRite on notice; deleted hours of footage were relevant to when/ how the hazard occurred and to store inspection practices, so adverse inference warranted | ShopRite: Followed reasonable retention policy; video was not likely to show the hazard; proportionality and burden justified limited retention; no bad faith | Held: Spoliation occurred. Deleting arguably relevant footage after notice was improper; bad faith not required to find spoliation; adverse-inference instruction was warranted and denial was abuse of discretion |
| Whether absence of bad faith prevents a spoliation finding | Marshall: Bad faith is relevant only to sanction severity, not to whether spoliation occurred | ShopRite: Lack of bad faith and routine policy meant no spoliation | Held: Lack of bad faith affects sanction level, not the existence of spoliation; negligent/reckless destruction still spoliation |
| Whether PTSI and e-discovery proportionality analysis justified denial of spoliation sanction here | ShopRite: PTSI and proportionality support not imposing sanctions where burden/cost outweighs relevance | Marshall: PTSI is distinguishable—there litigation was not foreseeable and deletions were routine | Held: PTSI is factually distinct; proportionality not dispositive here because ShopRite had notice and the deleted tape was uniquely probative |
| Whether the deleted footage was relevant to notice/inspection issues in a slip-and-fall case | Marshall: Extended surveillance could show who entered/inspected area, when spill occurred, or employee presence/absence | ShopRite: Video quality made seeing the substance unlikely; limited probative value | Held: Video need not show the substance itself; it can show events, personnel presence/absence, or prior similar incidents—thus it was relevant |
Key Cases Cited
- Pyeritz v. Commonwealth, 32 A.3d 687 (Pa. 2011) (defines spoliation and authorizes range of sanctions)
- Mt. Olivet Tabernacle Church v. Edwin L. Wiegand Div., 781 A.2d 1263 (Pa. Super. 2001) (duty to preserve when litigation pending/foreseeable; factors for sanction assessment)
- PTSI, Inc. v. Haley, 71 A.3d 304 (Pa. Super. 2013) (routine deletion of e-mails examined under proportionality; facts distinguished when litigation not foreseeable)
- Rodriguez v. Kravco Simon Co., 111 A.3d 1191 (Pa. Super. 2015) (discussion of spoliation doctrine and adverse inference remedy)
- Duquesne Light Co. v. Woodland Hills Sch. Dist., 700 A.2d 1038 (Pa. Cmwlth. 1997) (spoliation doctrine creates adverse inference to compensate prejudiced parties)