Personal Injury Lawsuits: What Happens When the Defendant Destroys a Surveillance Video?

A recent decision by the Superior Court of Pennsylvania provides justice to a woman who was injured while shopping and then had videotape evidence destroyed by the store.

Destruction of a Surveillance Video

In Marshall v. Brown’s IA, a shopper slipped and fell on water in the produce aisle of a ShopRite supermarket and aggravated a pre-existing injury to her hip and back. The fall was captured on the store’s surveillance video, and approximately two weeks after the accident, the shopper’s attorney sent ShopRite a letter requesting that it retain the video of the accident and area in question for six hours prior to the accident and three hours after the accident. The letter stated:

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.

Notwithstanding, ShopRite decided to preserve only 37 minutes of the video prior to the fall and approximately 20 minutes after. It permitted the remainder to be automatically overridden after 30 days.

The case went to trial, and during his opening statement, ShopRite’s attorney told the jury 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.”

The shopper’s attorney contended that ShopRite’s conscious decision not to retain the video constituted “spoliation,” which in legal parlance means the destruction of evidence before an opposing party has the opportunity to inspect it. The shopper’s attorney requested that the trial judge give what’s called an “adverse inference instruction” to the jury, meaning an instruction that the jury could find that the disposed surveillance video would have been unfavorable to ShopRite, unless ShopRite satisfactorily explained why it disposed of it.

The judge declined to give the instruction, and the jury returned a verdict in favor of ShopRite.

The shopper appealed to the Superior Court of Pennsylvania, arguing that she was entitled to a new trial because the judge erred in refusing to give the requested adverse inference instruction.

Relevant Evidence

In ruling in favor of the shopper, the Superior Court laid out how the destroyed tape could have helped prove her case:

We agree with [the shopper] 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. 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 [the shopper] 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.

Accordingly, the Superior Court vacated the judgment in ShopRite’s favor and remanded the case to the trial court for a new trial in which the requested adverse inference instruction would be given.


The court’s decision is one of fundamental fairness. As the opinion points out, ShopRite had better alternatives than to unilaterally destroy evidence:

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 [the shopper’s] counsel that it would not preserve the amount of video requested, and why, and permitted [the shopper’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.

The decision also reinforces why if you have been injured in an accident it is important to consult with a qualified personal injury attorney immediately to protect your legal rights. Query: What would the outcome have been if the shopper had delayed in consulting with an attorney and ShopRite had destroyed the video as part of its standard operating procedures without having received a letter from counsel demanding its preservation?