UPDATE: PA Supreme Court Reinforces That Businesses Must Retain Video Evidence in Slip-and-Fall Cases
Last April, we blogged about an unfortunate accident where a shopper slipped and fell in a supermarket and then had video evidence destroyed by the store. On March 3, the Pennsylvania Supreme Court declined to hear an appeal in the case, but in doing so reinforced the obligations of businesses to preserve video evidence when accidents occur on their premises.
Destruction of Surveillance Video
ICYMI: Marshall v. Brown’s IA involved a shopper who 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, which 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.
ShopRite sought to appeal the Superior Court’s ruling to the Pennsylvania Supreme Court. However, the high court declined to review the matter.
The effect of the Supreme Court’s refusal to hear the case is that the Superior Court ruling will stand. That ruling resonates far beyond the parties to this lawsuit.
Businesses should consider themselves officially on notice: When an accident occurs on their premises that could give rise to litigation, they must preserve video evidence, regardless of how over-reaching the request may seem. Here, ShopRite’s risk manager testified that it was ShopRite’s “rule of thumb” to preserve video surveillance from 20 minutes before and 20 minutes after a fall. 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.
Turns out it was a “fool’s errand” to destroy the video.
As always, if you have been injured in a slip-and-fall accident, we recommend consulting with a personal injury attorney immediately to ensure that your legal rights are protected.