In Marshall v. Brown’s IA, LLC, No. 2588 EDA 2017 (Pa. Super. March 27, 2019) the Superior Court allowed an adverse inference on the Defendants due to the spoliation of videotape evidence in a slip and fall case. As a quick background on spoliation of evidence: a party has a duty to retain evidence when they had “know[ledge] that litigation is pending or likely” and “it is foreseeable that discarding the evidence would be prejudicial” to the other party. If the party then destroys said evidence a court may instruct the jury that they are to take an adverse inference on the destroying parties claims/defenses or grant suit against the destroying party.
The Marshall Court found that although a store preserved 60 minutes of video from the slip and fall there should have been an instruction for an adverse inference against the defendant because the plaintiff’s attorney requested 6 hours before the fall and 3 hours after the fall, only 2 weeks after the incident occurred. This ruling was made even though during that 60 minutes of video preserved you could not see the “liquid” that allegedly caused Plaintiff to fall. The Superior Court noted that whether the destruction of evidence is in good faith or bad faith has nothing to do with whether the inference/sanction should have been granted but motive only goes to the severity of the sanction administered.
If you would like to know more about Spoliation of Evidence please contact our Personal Injury Lawyers at the Law Offices of Edward J. McKarski for a free consultation.