One e-discovery blog I never fail to read is Doug Austin’s eDiscoveryDaily. It’s hard to come up with a post every day; yet, Doug makes it look easy. Each post is a quick read with little editorializing; and, Doug faithfully includes a link to the opinion. That last may seem a small thing; but, some bloggers don’t do it (or only share the full text of the decision with paying customers). There’s no substitute for reading the case.
Today, Doug posted on Harrell v. Pathmark, (USDC EDPA, February 26, 2015), where the Court dismisses the plaintiff’s slip-and-fall injury claim on summary judgment. I don’t think the Court got it wrong on the merits; but, in weighing in, sua sponte, on the e-spoliation issue, I’m reminded of the maxim, “hard cases make bad law.” Slip-and-fall cases must be some of the hardest cases around because the law often seems to lose its footing when it comes to the failure to retain video evidence in these disputes.
First, a word about attitudes respecting slip-and-fall cases. Most people think that plaintiffs lawyers are licking their chops when someone falls and gets hurt at a grocery store. Slip-and-fall cases are frequent fodder for the fresh and ever-hilarious jokes about ambulance chasing. But, having handled a fair number of such doggie cases in my youth, I can assure you that slip-and-falls are not easy claims, and proving the requisite notice of the hazard is a high bar to clear.
Stores are not insurers of the safety of their patrons (“business invitees”) who fall and get hurt. Just the same, if a store knew or should have known of a hazard and had a reasonable opportunity to correct it, a store should be held responsible for the consequences of its negligence, just as plaintiff has an obligation to be reasonably vigilant in watching what she’s doing in a place designed to divert one’s attention to the wares.
Slip-and-fall cases are unique in that most who fall in public are embarrassed by the attention and assumptions falling prompts. We are conditioned to quickly say, “I’m fine” and put an end to the embarrassment and scrutiny. Unless something fractures, most can walk away from a fall and won’t immediately appreciate the full magnitude of the injury until the medical bills mount.
But, if you think that slip-and-fall cases are easy, just know that, in terms of courtroom drama, “I told them I was okay, and that I wasn’t sure what I slipped on; but, it felt wet, and I really got hurt,” isn’t riveting testimony.
Proportionality in discovery cuts both ways; so, considering how hard they are to win and the customary modesty of recoverable damages, there’s a limit to how much time and money one can invest in working up slip-and-fall cases. When you end up having to try one in federal court…well, as Ms. Clavel might say, “Something is not right. Something is quite wrong.”
The District Judge rendered the facts rather jauntily:
“On the sunny afternoon of May 1, 2013, Ms. Harrell was shopping for groceries in a Philadelphia Pathmark store. As she walked into the deli section of the market, her legs slipped out from under her and she fell to the floor face-first. When Ms. Harrell got up from the floor, she noticed something wet on her pants. Sure enough, on the floor where she had fallen was a collection of what appeared to be water. This liquid was not collected in a large pool—she noted that the amount of liquid ‘wasn’t a lot. It wasn’t like a puddle’—but rather ‘was maybe like, say if somebody wasted some water in a cup or something.'”
After setting out the standard of review and applicable liability doctrine, the Judge got to the nub of why the case must be summarily dismissed:
“This case turns on whether Pathmark had constructive notice of the collection of liquid. Ms. Harrell has not provided any evidence that Pathmark played a role in creating the collection of liquid on which Ms. Harrell slipped or that Pathmark had actual or constructive notice of it. There is no evidence or argument here that Pathmark created the collection of liquid, nor is there evidence or argument that Pathmark had actual notice of it.”
Game over. Go hence without day.
But then the hair on the back of this lawyer’s neck stands up. Game over, but the Court has more to say, and about issues no one was prepared to address (much like predictive coding in Delaware Courts of Chancery), to wit:
“Finally, although Ms. Harrell does not specifically invoke the issue, one could read the concluding paragraphs of her Memorandum opposing summary judgment as contending that the Court should draw an adverse spoliation inference against Pathmark. The Memorandum notes that Pathmark had working security cameras in the store, but the video footage from the time and date of the accident was not preserved and has now been recorded over. The Court, appreciative of this potential issue, sua sponte scheduled a hearing to prompt the parties to address the issue on whether the Court could or should draw an adverse spoliation inference due to the absence of video evidence.”
Sua sponte. Latin for “on the Court’s own accord;” although, if Black’s Law Dictionary reflected how it translates in lawyer’s minds, it would be Latin for, “oh, shit!“
The Court’s peculiar wording reveals that Plaintiff didn’t “specifically” raise the issue of spoliation and that the Court undertook to “prompt the parties” to address it. We learn, “one could read” the pleadings to raise the issue; implying that one could, as well, NOT do so; and, apparently the parties chose that path until the Court decided to go its own way, sua sponte. Which may be Latin for, “I want to be invited to speak at the Georgetown Advanced E-Discovery Institute.” (I, in turn, will need to remember what mea culpa means, because if that joke falls flat, I will be saying it to a lot of judges).
I gather Plaintiff’s counsel did not share the Court’s enthusiasm for the spoliation instruction issue, bringing to mind the line attributed to at least one famous plaintiff’s lawyer in every state and memorably spoken by Paul Newman’s character, Frank Galvan, in the film, The Verdict (1982): “Your honor, with all due respect, if you’re going to try my case for me, I wish you wouldn’t lose it.” The case was already a loser. Did it need to delve into issues that weren’t specifically raised and, per the Court, were inadequately addressed in the record?
You don’t have to be a mind reader to perceive the Court’s thinking that a poor record put forward by counsel obliged the Court to issue an opinion that needlessly prompts a troubling e-discovery precedent. Here’s what the Court said:
“The entirety of the ‘record’ on the lost video footage, other than subsequent snippets of explanations from counsel in responses to interrogatories and requests for production, comes from a deposition with Mr. Nafiesh Lewis, an assistant manager at the Pathmark store where Ms. Harrell allegedly fell. Mr. Lewis testified at his deposition that there were security cameras operating at the time of and in the general area of the accident. However, these videos were not preserved. Mr. Lewis testified that he emailed the loss prevention manager, Ric Jenkins, to come and save the footage by burning it to a disk. Mr. Lewis may have also called Mr. Jenkins about the video footage. However, Mr. Jenkins never came to save the footage. Mr. Jenkins has since left Pathmark’s employ. Other than the initial phone call and email to Mr. Jenkins, Mr. Lewis did not follow up about the video footage. The video tape with the footage from the date of the incident was eventually reused, and the footage was recorded over and lost.”
If there were any doubt that the Court points the finger squarely at counsel’s failure to make a sufficient record, footnote 5 suggests that the Court issued an engraved invitation to put into evidence a letter that demonstrates that the Plaintiff made an express request that the video footage be retained.
In fairness to Plaintiff’s counsel, how much more “state of mind” evidence is needed beyond the Ass’t Store Manager writing AND calling the Loss Prevention Manager with the express request to save the footage? If not for anticipated litigation, why would the Ass’t Manager ask it be saved? Perhaps for a bloopers reel for the Pathmark Christmas Party or to submit to America’s Funniest Supermarket Videos? When the Court says, “other than the initial phone call and email,” what “other” express communication is needed to prompt a Loss Prevention Manager to not lose the video evidence of a reported fall and injury?
My guess is that sending a lovely bouquet from the Pathmark Floral Department is now the notice standard for spoliation in Philadelphia: “He DID write. He DID call. But, Judge, he DIDN’T send no FLOWERS!“
One other key point about supermarket slip-and-fall claims: anyone who’s done more than one such case understands that proving the how and how long of the slip hazard is crucial. A Store- or Loss Prevention Manager who honestly doesn’t understand the import of video of the vicinity of the fall shouldn’t be managing anything. That person’s role in the food chain should be as Soylent Green. (Kidding, please don’t eat the managers).
So, the Court emphasizes the poor record, leaving the injured plaintiff to trade a hard claim (slip and fall) for a harder claim (legal malpractice). I hope not, because, as I explained above, the well-heeled creme de la creme of the plaintiffs’ bar spare no expense developing the “slipped on water no one else saw and twisted my knee” claims in federal court.
Thus, sua sponte, a Court puts the burden on the injured party to explicitly prove the contents of lost evidence which was exclusively under the spoliating party’s control and which the spoliating party expressly understood must be preserved and wasn’t. Oh, and after being asked to preserve it, twice by management and a third time by plaintiff’s counsel.
What, exactly, is a Loss Prevention Manager charged to avoid losing? Apparently, not the evidence. Hard cases. Bad law.
One last point: If you are a retailer, how about acquainting all your managers with one simple, inviolable rule: If someone reports getting hurt on the premises, keep the video! Every. Single. Time.