Pennsylvania Record

Friday, December 13, 2019

Appeals court grants new trial in ShopRite customer's slip-and-fall case; Deleted video of store an issue


By Scott Holland | Jul 1, 2019


HARRISBURG - A Pennsylvania appeals court has ordered a new trial for a woman who fell and was injured in a ShopRite grocery store.

According to the original complaint, Harriet Marshall was shopping in the produce section of the Island Avenue ShopRite in Philadelphia on Aug. 6, 2014, when she slipped and fell on water, aggravating a pre-existing hip and back injury. Two weeks later, Marshall’s lawyer sent ShopRite owner Brown’s IA LLC, a request to preserve surveillance video of the accident scene for six hours before and three hours after her fall, the suit alleges.

When Marshall’s negligence lawsuit went to trial, the company had only 37 minutes of footage before her fall and 20 minutes following, having allowed the rest to be overwritten 30 days after the incident. Marshall said the conscious decision to not preserve the video constituted evidence-spoiling and asked the jury to be so instructed.

After a Philadelphia County Civil Court entered judgment in favor of Brown's in July 2017, Marshall appealed to the Superior Court of Pennsylvania, which issued an opinion June 19. Judge Mary Jane Bowes wrote the opinion. Judges Victor Stabile and Maria McLaughlin concurred.

According to the panel, the trial judge said the fact Marshall requested the longer video didn’t make it relevant, further concluded ShopRite didn’t act in bad faith and didn’t tell the jury it could infer the unseen video would harm the store’s defense.

“Penalties for spoliation have been imposed since the early 17th Century,” Bowes wrote, and a party is obligated to retain evidence when it knows a lawsuit is likely. “The benefit of retaining the vital videotape evidence far outweighed the burden and expense.”

The longer video section, Marshall argued, could have shown either the origin of the water that caused her fall or would have proven if store employees followed safety precaution policy. The judges agreed, saying the letter from Marshall’s lawyer was sufficient to put ShopRite on notice for potential litigation.

Finding the trial court abused its discretion by refusing to give the jury special instructions, the appeals panel vacated the judgment against Marshall and ordered a new trial.

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