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Foreman v. Two Farms, Inc.

Superior Court of Delaware, Kent

October 4, 2018


          Submitted: August 14, 2018

         Upon Plaintiff's Motion for an Adverse Inference Instruction Granted

         Upon Defendants Motion in Limine to Preclude References to Missing Surveillance Video Denied

         Upon Defendants Motion in Limine to Preclude Plaintiff's Photograph Deferred

         Upon 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 Plaintiff.

          Michael J. Logullo, Esquire, Rawle & Henderson, LLP, Wilmington, Delaware, and Jeffrey L. Oster, Esquire, Rawle & Henderson, LLP, Philadelphia, Pennsylvania, Attorneys for Defendants.


          JEFFREY J. CLARK, J.

         On 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.

         Ms. 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.

         Royal 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.

         For the 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.

         I. Factual Background

         Ms. 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. Foreman's fall.

         The 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.

         After 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.[1]

         On May 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 ...

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