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July 29, 2015

Potential Spoliation of Evidence Sufficient to Defeat Defendant’s Summary Judgment Motion

In Rodriquez v. Kravco Simon Company, A.2d, 2015 Pa. Super. 41 (2015), the Superior Court reversed the trial court’s decision granting summary judgment in favor of the defendant property owner in a slip and fall case. The property owner had successfully argued to the trial court that there was no evidence of actual or constructive notice of a brown puddle on the floor. The Superior Court’s reversal was not based on whether there was a question of fact regarding constructive notice of the puddle, but instead was based on the possibility that the plaintiff may be entitled to an adverse inference instruction as a result of a potential spoliation of evidence claim against the defendant.

The plaintiff was walking in the Lehigh Valley Mall when he slipped in a puddle of brown liquid and fell, breaking his leg. The defendant moved for summary judgment on the basis that there was no evidence that the defendant had actual or constructive notice of the condition. The trial court granted the motion, and the plaintiff appealed to the Superior Court. The trial court discussed the plaintiff’s spoliation contentions and its rejection of them as follows:

In an attempt to support the constructive notice claim, plaintiff relies on an asserted adverse inference regarding maintenance records that were not produced by defendants. Plaintiff argues that in response to a discovery request, defendants produced maintenance records for the Lehigh Valley Mall for the month of June 2011; missing from the records is the June 6, 2011 paperwork. Plaintiff argues that the failure to preserve a maintenance record that was clearly material to this action entitles plaintiff to an appropriate inference to review all evidence in as strong of light as possible against defendants.

Plaintiff has not raised this issue with a motion for spoliation sanctions to allow this court to review the elements of spoliation and make a determination regarding any adverse inference based on the missing discovery. In reviewing this motion for summary judgment, we are limited to the record before us, and said record does not include an adverse inference regarding the lack of maintenance records for the date in question.

 The Superior Court, however, rejected the reasoning of the trial court, observing that no authority was cited for the proposition that spoliation sanctions must be obtained, by prior motion and order, in order for the issue to affect a summary judgment analysis. The Superior Court then held that the open question about spoliation precluded the entry of summary judgment in favor of the defendant. The court based its decision on the principle that when considering a motion for summary judgment, all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. The court concluded that the plaintiff had come forth with evidence that raises doubt as to the existence of a question of material fact. It is important to note that the Superior Court did not conclude the plaintiff was entitled to an adverse inference instruction based upon a spoliation of evidence claim, but only that the possibility existed that the plaintiff was entitled to such an instruction. That possibility, according to the Superior Court, was sufficient to reverse the trial court’s decision granting summary judgment in favor of the defendant property owner.

What It Means to You

This case demonstrates how difficult it can be for a defendant to succeed on a motion for summary judgment in a slip and fall case, as plaintiffs consistently look for any way to argue that a question of fact exists, resulting in a denial of a motion for summary judgment. Unfortunately, the courts seem willing to accept these arguments even where, as here, no finding of spoliation of evidence against the defendant was made and the plaintiff had not even presented the spoliation claim to the trial court for consideration.

Given this decision, a defendant, before moving forward with the filing of a motion for summary judgment, will have to give consideration to not only the evidence that has been developed with respect to notice and constructive notice of a dangerous condition, but also to the possibility that a plaintiff may be in a position to make a spoliation of evidence argument. This will be one more door that a defendant will need to close in order to have a reasonable chance of success on a summary judgment motion. If that door cannot be closed, then based upon Rodriquez, the motion will be denied.