Appeal-Negligence

Marshall vs. Brown’s IA, LLC, 2019 Pa Super. LEXIS 608.  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.   Approximately two weeks later, ShopRite received a letter or 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 three hours after the accident.   Ms. Marshall’s slip and fall was captured on the store’s video surveillance system.  However, ShopRite decided to preserve only thirty-seven minutes of video prior to Ms. Marshall’s fall and approximately 20 minutes after, and permitted the remainder to be automatically overwritten after thirty days.  The jury returned a verdict in favor of ShopRite, finding no negligence.  In the instant case, counsel for Ms. Marshall contacted ShopRite within two weeks of her fall, advised it of impending litigation, and requested that it preserve six hours of video surveillance prior to her fall and three hours after her fall.  Thus, ShopRite was on notice to retain the evidence.  As we stated, in Mt. Olivet, supra. At 1269 (quoting Nation-Wide Check Corp. vs. Forest Hills Distributors, Inc., 692 F.2d 214, 218 (1^st Cir. 1982)).