eDiscovery Daily Blog

• April 6, 2015

In Harrell v. Pathmark et al., Civil Action No. 14-5260 (E.D.Penn. Feb. 26, 2015), Pennsylvania District Judge Gene E. K. Pratter, after a hearing to consider whether to draw an adverse inverse instruction due to the defendant’s possible spoliation of video evidence, determined that “a spoliation inference would not be appropriate here”. Finding that the plaintiff had presented no evidence that the defendant had constructive notice of a dangerous condition resulting in her slip and fall, Judge Pratter also granted the defendant’s motion for summary judgment.

Case Background

The plaintiff filed suit claiming the defendant’s negligence “resulted in her slipping on a dangerously slick surface” in the defendant’s store in May 2013. The defendant moved for summary judgment arguing that the plaintiff failed to prove that the defendant had actual or constructive notice of the wet condition of the floor.

The plaintiff’s memorandum opposing the summary judgment noted that the defendant had working security cameras in the store, but the video footage from the time and date of the accident was recorded over and not preserved. As a result, the Court sua sponte scheduled a hearing to prompt the parties to address the issue on whether the Court could or should draw an adverse spoliation inference due to the absence of video evidence.

Judge’s Opinion

Stating that “Ms. Harrell has not presented the Court with evidence from which a reasonable jury could infer that Pathmark had constructive notice of the wet condition of the floor”, Judge Pratter turned to the potential spoliation of video evidence, noting that “although Ms. Harrell does not specifically invoke the issue, one could read the concluding paragraphs of her Memorandum opposing summary judgment as contending that the Court should draw an adverse spoliation inference against Pathmark.”

Judge Pratter found that the plaintiff “has not satisfied her burden of demonstrating that the video footage would have been relevant” and also determined that the court “cannot conclude based on the evidence before it that the video evidence was actually suppressed or withheld. Nor can it conclude that litigation was reasonably foreseeable at a time when the video footage presumably still existed.” His ruling quoted Bull v. United Parcel Service, Inc., 665 F.3d 68, 77 (3d Cir. 2012) as follows:

“Ordinary negligence does not suffice to establish spoliation. The party asserting spoliation must prove that evidence was intentionally withheld, altered, or destroyed. Thus, no unfavorable inference of spoliation arises if the evidence was lost, accidentally destroyed, or where the failure to produce it is otherwise properly accounted for.”

With regard to this case, Judge Pratter remarked “Here, Ms. Harrell has not presented evidence of bad faith. Even in a highly litigious community or culture, just because a person falls in a grocery store does not mean that litigation is imminent. Here, the lawsuit was not filed until August 2014, over a year after the incident and far past the maximum of about 90 days that the video footage would have survived before being automatically re-recorded. While the incident itself did cause Mr. Lewis to create an incident report, nothing about it was so immediately dramatic to create an objectively foreseeable likelihood of litigation…Pathmark’s actions, in this context, appear to the Court to be at the very most mere inadvertent negligence.”

Therefore, Judge Pratter determined that “a spoliation inference would not be appropriate here” and with no evidence to support the plaintiff’s claim, granted the defendant’s motion for summary judgment.

Click here and here for a couple of previous slip and fall cases we’ve covered where potential spoliation of video evidence was debated.

So, what do you think? Was the court right to grant the motion for summary judgment? Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.