Submitted: August 14, 2018
Plaintiff's Motion for an Adverse Inference Instruction
Defendants Motion in Limine to Preclude References to Missing
Surveillance Video Denied
Defendants Motion in Limine to Preclude Plaintiff's
Defendants Motion in Limine to Preclude the use of NOAA
Weather Records at Trial Denied
Michael P. Minuti, Esquire and Timothy A. Dillon, Esquire,
McCann & Wall, LLC, Wilmington, Delaware, Attorneys for
Michael J. Logullo, Esquire, Rawle & Henderson, LLP,
Wilmington, Delaware, and Jeffrey L. Oster, Esquire, Rawle
& Henderson, LLP, Philadelphia, Pennsylvania, Attorneys
MEMORANDUM OPINION & ORDER
JEFFREY J. CLARK, J.
February 28, 2015, Betty Foreman (hereinafter "Ms.
Foreman") slipped and fell on a sidewalk at a Royal
Farms convenience store owned and operated by Two Farms,
Inc., and Moores Lake Shopping Center, LLC (hereinafter
collectively "Royal Farms"). Ms. Foreman sues Royal
Farms, claiming that it permitted snow and ice to remain on
the sidewalk for an extended period of time which in turn
caused her fall. She also claims that Royal Farms failed to
warn her of the allegedly dangerous conditions.
Foreman seeks an adverse inference jury instruction at trial
because Royal Farms did not retain a surveillance video
showing her fall and the sidewalk's condition. Royal
Farms claims that an adverse inference instruction would be
inappropriate because there is no evidence that it
intentionally or recklessly destroyed the evidence.
Additionally, Royal Farms asserts that Ms. Foreman's fall
was not captured by the video because the camera angle was
obstructed. According to Royal Farms, the lost recording is
therefore immaterial and irrelevant.
Farms also filed three motions in limine: (1) to
preclude references to the missing surveillance video; (2) to
preclude photographs that Ms. Foreman allegedly took of the
area of her fall on the day of the incident, or in the
alternative, to also permit an adverse inference instruction
because some of Ms. Foreman's photographs were allegedly
deleted; and (3) to preclude weather record evidence that Ms.
Foreman seeks to introduce at trial.
reasons that follow, Ms. Foreman's motion seeking a
spoliation instruction is GRANTED. Royal
Farms' motions in limine to preclude references
to the missing surveillance video and to preclude evidence of
weather records are DENIED. Finally, Royal
Farms' motion to preclude Ms. Forman's cell phone
picture of the scene, or in the alternative to require a
spoliation instruction regarding pictures Ms. Foreman
allegedly deleted from her cell phone, is
DEFERRED until trial.
Foreman slipped and fell at a Dover Royal Farms on February
28, 2015. A few days after Ms. Foreman's fall, Michelle
Russo (hereinafter Ms. Russo), a claims administrator for
Royal Farms risk management department, viewed the video and
the incident report. Ms. Russo testified in her deposition
that she did not recall seeing Ms. Foreman fall on the video
when she reviewed it because a pillar and a Red Box machine
allegedly obstructed the camera's view. After watching
the surveillance video, Ms. Russo downloaded it and saved it
on a CD and then placed the CD in a box. That CD was the only
copy made of the surveillance video from the day of Ms.
incident report completed shortly after the incident confirms
that a CD of the incident was "burned" and that
"the incident range was located in the DVR." Ms.
Foreman's counsel sent a certified letter to Royal Farms
on April 13, 2015, notifying Royal Farms of Ms. Foreman's
personal injury claims. That letter also requested that it
preserve all evidence, including specifically video
surveillance footage, from the date of Ms. Foreman's
fall. Namely, the evidence preservation letter provided:
[p]lease accept this letter as formal notice of claim. ...
Please take all the necessary steps to preserve all written
documents, e-mails, and physical evidence regarding Ms.
Foreman's fall, including but not limited to, video
surveillance; incident reports; inspection logs and reports;
statements; safety materials used, such as salt, sand or
calcium; and any and all pictures of the scene.
receiving the notice of claim and evidence preservation
letter, Royal Farms acknowledged its receipt on May 14, 2015.
The sole disc containing the video footage was either lost or
destroyed sometime in June 2015.
24, 2018, Defense counsel informed Ms. Foreman's counsel
that the video surveillance footage no longer existed. Then,
on May 31, 2018, Ms. Foreman's counsel deposed Ms. Russo.
During her deposition, she testified that the video
surveillance evidence had simply "disappeared." She
testified that the box containing the CD was placed on the
top shelf in a storage room and that box, and at least seven
other boxes, disappeared during a renovation of the office in
the months afterwards. Ms. Russo could not give a specific
date for when the ...