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Marshall v. Brown's IA, LLC

Superior Court of Pennsylvania

June 19, 2019, Decided; June 19, 2019, Filed

No. 2588 EDA 2017

Opinion

 [*265]  OPINION BY BOWES, J.:

Harriet Marshall appeals from the July 10, 2017 judgment in favor of Appellee Brown's IA, LLC, and alleges that she is entitled to a new trial because the trial court erred in refusing to give an adverse inference instruction based on Appellee's spoliation of videotape evidence. We vacate the judgment and remand for a new trial.

Brown's IA, LLC ("ShopRite") owns thirteen grocery stores, one being the Island Avenue ShopRite in Philadelphia. On August 6, 2014, Ms. Marshall slipped on water, fell in the produce aisle of the store, and aggravated a preexisting injury to her hip and back. ShopRite employees came to her aid and summoned medical assistance, and the manager completed an incident report immediately thereafter.1

 [*266]  Approximately two weeks later, ShopRite received a letter of representation from Ms. Marshall's counsel requesting that ShopRite retain, inter alia, surveillance video of the accident and area in question for six hours prior to the accident and [**2]  three hours after the accident. Additionally, the letter cautioned:

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. Accordingly, discarding any of the above evidence will lead to an Adverse Inference against you in this matter.

Plaintiff's Exhibit 3 (letter from counsel, 8/18/14, at 1).

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213 A.3d 263 *; 2019 Pa. Super. LEXIS 608 **; 2019 PA Super 191; 2019 WL 2518423

HARRIET MARSHALL, Appellant v. BROWN'S IA, LLC

Subsequent History: Rehearing denied by Marshall v. Brown's IA, 2019 Pa. Super. LEXIS 839 (Pa. Super. Ct., Aug. 21, 2019)

Appeal denied by Marshall v. Brown's IA, LLC, 2020 Pa. LEXIS 1330 (Pa., Mar. 3, 2020)

Prior History:  [**1] Appeal from the Judgment Entered July 10, 2017. In the Court of Common Pleas of Philadelphia County Civil Division at. No(s): September Term, 2015 No. 03279. Before SEAN F. KENNEDY, J.

Marshall v. Brown's IA, LLC, 2019 PA Super 94, 2019 Pa. Super. LEXIS 279 (Pa. Super. Ct., Mar. 27, 2019)

CORE TERMS

video, spoliation, relevant evidence, trial court, video surveillance, floor, bad faith, inspected, deleted, reasonable care, notice, adverse inference, destroyed, electronic, premises, proportionality, preservation, offending, sanctions, minutes, spill, dangerous condition, destroy evidence, twenty minutes, factors

Civil Procedure, Appeals, Standards of Review, Abuse of Discretion, Evidence, Relevance, Preservation of Relevant Evidence, Spoliation, Relevant Evidence, Torts, Duty On Premises, Invitees, Business Invitees, General Premises Liability, Dangerous Conditions, Known Dangers, Activities & Conditions, Slip & Fall Injuries, Elements