August 1, 2018
A pair of Pennsylvania State Court opinions issued in June 2018 illustrates how significant closed circuit television or videotape evidence has become in the litigation of retail premises liability and other negligence cases. In Schneider v. Giant Food Stores, LLC, the Pennsylvania Superior Court reviewed the defendant-store’s videotape evidence, and noted that the footage supported the store’s version of events that a store employee looked in the direction of a wet substance on the floor only after the plaintiff told her about its existence. Finding there was no evidence from which a jury could reasonably conclude that the store employee had prior notice of the dangerous condition, the court affirmed the trial court’s entry of summary judgment. In Wasnetsky v. Quinn’s Market, a trial court granted summary judgment in favor of the defendant store, rejecting a plaintiff’s spoliation of videotape evidence argument. There, none of the store’s cameras was positioned to view or capture footage of the accident location and, the court reasoned, a party cannot be sanctioned for failing to preserve evidence that never existed.
The handling of videotape evidence in premises liability cases presents a number of challenges. When videotape evidence of the subject accident is preserved, the presentation of that evidence to a judge before trial and before a jury at trial can be critical to success in an age of greater reliance on technology in the decision making process. In Pennsylvania, spoliation – the action of ruining or destroying evidence – can lead a trial court to impose sanctions against the spoliator. In determining what sanction is appropriate, a court typically will consider (1) the degree of fault of the party who altered or destroyed the evidence; (2) the degree of prejudice suffered by the opposing party; and (3) the availability of a lesser sanction that will protect the opposing party’s rights and deter future similar conduct.In Wasnetsky, the plaintiff asked for an adverse inference to be drawn. The death of the plaintiff as a result of the fall occurred five (5) days after the accident.The estate could present no witness or other evidence to prove that a dangerous condition caused the accident. The adverse inference instruction would have allowed an end run around the plaintiff’s burden of proof on the existence of a dangerous condition. Whenever real property that is the subject of an accident is equipped with a videotape system, or in-car camera footage is available in a motor vehicle accident, the plaintiff will invariably scrutinize and, in many cases, challenge the decisions made by the opposing party or claims representative relating to the preservation of that evidence.
As was the case in Schneider, in a case where relevant videotape evidence is preserved, that evidence can influence a trial judge’s decision whether to grant a defense motion for summary judgment. In Scott v. Harris, a 2007 United States Supreme Court decision, the Court ruled that when opposing parties tell two different stories, one of which is blatantly contradicted by videotape evidence, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment. Where, for example, a plaintiff testified that she slipped on a wet substance on the floor, but the videotape shows that she tripped on her shopping cart wheel, a court should not allow a jury to consider the plaintiff’s version of the accident. In Schneider, the plaintiff contended that a store employee looked in the direction of, and became aware of, a spill before the plaintiff’s accident. The videotape, however, showed that the store employee looked at the area of the spill only after the plaintiff pointed it out to her. As the video undercut the basis for drawing an inference of prior knowledge or notice, the court granted summary judgment.
If the case proceeds to trial, the only limitation on how that evidence can be spun is the imagination of the attorneys. If footage of only the accident itself is preserved, a plaintiff is able to challenge the retail’s store’s adherence to its housekeeping program by asking why the videotape fails to prove that store employees were diligent in their inspection activities before the accident. In another example, a retailer may preserve videotape evidence showing only the one minute period before the accident to confirm the cause of the accident. But if the best available defense is the lack of prior constructive notice of the hazard, why did the defendant fail to preserve the best evidence of who or what created the hazard and how long it was present before the plaintiff’s accident?
Rather than adopt a rigid rule of when and how much of the videotape footage should be preserved, a partyor claims professional should assess the issues in each case. That assessment should translate into appropriate instructions to the individuals who are tasked with evidence collection of what and how much should be preserved. In that way only, the likelihood that helpful evidence will be preserved is increased. And a defendant will be in a better position to counter any argument that its conduct prevented the plaintiff’s ability to prove her case.