J. A15004/16

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

DIANE SCOTT, :

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

 Appellant :

:

v. :

: No. 2237 EDA 2015

ATLANTA RESTAURANT PARTNERS, 

LLC, T/A/D/B/A T.G.I. FRIDAY’S

:

:

Appeal from the Judgment Entered July 14, 2015,

in the Court of Common Pleas of Philadelphia County

Civil Division at No. 140202800

BEFORE: FORD ELLIOTT, P.J.E., DUBOW AND JENKINS, JJ.

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED DECEMBER 06, 2016

Diane Scott appeals the judgment entered by the Court of Common 

Pleas of Philadelphia County after a non-jury trial in favor of Atlanta 

Restaurant Partners, LLC, T/A/D/B/A T.G.I. FRIDAY’S and against appellant.

The facts as recounted by the trial court are as follows:

On October 12, 2012, Appellant, accompanied 

by her two daughters and granddaughter decided to 

go to dinner at the T.G.I. Friday’s located on City 

Line Avenue, Philadelphia, PA which is owned and 

operated by [appellee]. The dinner was to celebrate 

that Appellant was finally feeling good following 

surgery for a blood clot and subsequent physical 

therapy. Upon entering the restaurant along with 

her granddaughter, she took a couple of steps and 

tripped over a floor rug reinjuring the nearly healed 

leg and injuring other parts of her body. Appellant 

claimed the rug had some bump in it that was almost 

3-4 inches high and this caused her to trip and fall. 

Appellant’s daughter, Era Scott, did not witness the 
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accident itself but entered the restaurant shortly 

thereafter. She saw a ridge no more than 2 inches 

high and a couple of other puckers.

Unidentified non-employee individuals 

ministered [to] the Appellant following the fall. An 

ambulance arrived 10-15 minutes after the accident 

and it took Appellant to Lankenau Hospital where she 

was examined by staff and given certain medical 

tests.

Trial court opinion, 10/7/15 at 2 (citations to record omitted).

The trial court further explained:

[Appellant] brought this action which arose 

from a slip and fall taking place [in] [appellee’s] 

restaurant on October 12, 2012. Relevantly, 

[appellant] alleged in a motion in limine due to 

spoliation of evidence from the [appellee’s] 

destruction of pertinent videotape containing video 

of the rug upon which the Appellant tripped and 

adjacent area, prior to and at the time of the 

accident. Appell[ant] unsuccessfully argued for a 

sanction against [appellee] of either judgment 

against [appellee] or [appellee] had notice of the 

defect. This court rejected [appellant’s] proposed 

alternatives and instead, imposed a sanction of an 

adverse inference that there was a defect and 

[appellee] was therefore responsible for the injury.

Id. at 1.

Following the verdict, appellant moved for post-trial relief. On July 13, 

2015, the trial court denied the post-trial motions. This timely appeal 

followed.

Appellant raises the following issues for this court’s review:

I. Did the trial court err by refusing to enter 

judgment against [appellee] on the issue of 
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liability, as a sanction for [appellee’s] flagrant 

spoliation of evidence? 

II. Even given the trial court’s ruling granting only 

an adverse inference due to [appellee’s] 

spoliation of evidence, did that inference, when 

taken together with other evidence of record, 

including the testimony of [appellee’s] own 

witnesses, entitle [appellant] to judgment as a 

matter of law on the issue of liability?

III. Did the trial court err in failing to vacate the 

verdict for [appellee] as against the weight of 

the evidence? 

Appellant’s brief at 3.

Initially, appellant contends that the trial court erred when it refused 

to enter judgment against appellee on the issue of liability due to appellee’s 

flagrant spoliation of the evidence.

“When reviewing a court’s decision to grant or 

deny a spoliation sanction, we must determine 

whether the court abused its discretion.” Mount 

Olivet Tabernacle Church v. Edwin L. Wiegand 

Division, 781 A.2d 1263, 1269 (Pa.Super. 2001) 

(citing Croydon Plastics Co. v. Lower Bucks 

Cooling & Heating, 698 A.2d 625, 629 (Pa.Super. 

1997) (recognizing that “[t]he decision whether to 

sanction a party, and if so the severity of such 

sanction, is vested in the sound discretion of the trial 

court”)). Such sanctions arise out of “the common 

sense observation that a party who has notice that 

[evidence] is relevant to litigation and who proceeds 

to destroy [evidence] is more likely to have been 

threatened by [that evidence] than is a party in the 

same position who does not destroy [the evidence].” 

Mount Olivet, 781 A.2d at 1269 (quoting 

Nation-Wide Check Corp. v. Forest Hills 

Distributors, Inc., 692 F.2d 214, 218 (1st Cir. 

1982)). Our courts have recognized accordingly that 

one potential remedy for the loss or destruction of 
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evidence by the party controlling it is to allow the 

jury to apply its common sense and draw an 

“adverse inference” against that party. See 

Schroeder v. Commonwealth of Pa., Dep’t of 

Transp., 551 Pa. 243, 710 A.2d 23, 28 (1998). 

Although award of summary judgment against the 

offending party remains an option in some cases, its 

severity makes it an inappropriate remedy for all but 

the most egregious conduct. See Tenaglia v. 

Proctor & Gamble, Inc., 737 A.2d 306, 308 

(Pa.Super. 1999) (“[S]ummary judgment is not 

mandatory simply because the plaintiff bears some 

degree of fault for the failure to preserve the 

product.”).

Creazzo v. Medtronic, Inc., 903 A.2d 24, 28-29 (Pa.Super. 2006).

To determine the appropriate sanction for spoliation, 

the trial court must weigh three factors:

(1) the degree of fault of the party 

who altered or destroyed the evidence; 

(2) the degree of prejudice suffered by 

the opposing party; and (3) whether 

there is a lesser sanction that will avoid 

substantial unfairness to the opposing 

party and, where the offending party is 

seriously at fault, will serve to deter such 

conduct by others in the future.

Mount Olivet, 781 A.2d at 1269-70 (quoting 

Schmid v. Milwaukee Elec. Tool Corp., 13 F.3d 

76, 79 (3d Cir.1994)). In this context, evaluation of 

the first prong, “the fault of the party who altered or 

destroyed the evidence,” requires consideration of 

two components, the extent of the offending party’s 

duty or responsibility to preserve the relevant 

evidence, and the presence or absence of bad faith. 

See Mt. Olivet, 781 A.2d at 1270. The duty prong, 

in turn, is established where: “(1) the plaintiff knows 

that litigation against the defendants is pending or 

likely; and (2) it is foreseeable that discarding the 

evidence would be prejudicial to the defendants.” 

Id. at 1270-71.
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Creazzo, 903 A.2d at 29.

Here, the evidence in question was the tape produced by the video 

surveillance system that was used to film the entrance to the restaurant 

where appellant slipped. Michael Rogers (“Rogers”), the general manager of 

the restaurant, testified that due to the way the video system operated, the 

surveillance record would be overwritten in approximately seven to nine 

days. (Notes of testimony, 3/12/15 at 400-401.) Rogers did not view the 

video, though the manager on duty, Teresa Burnham (“Burnham”), 

apparently did and may have preserved a copy of the footage on her own 

cell phone. At the time of trial, Burnham no longer worked for appellee and 

could not be located. (Id. at 421-422.)

In her argument, appellant asserts that she satisfied the three prongs 

of the Mount Olivet test. First, she argues that the fault was entirely on 

the part of appellee. Appellant, her daughters, and her granddaughter were 

business invitees and did not have any knowledge of the video and did not 

have any way to preserve it. On the other hand, Rogers had seven to 

nine days to copy the relevant video footage onto a more durable format or 

possibly to download the footage from Burnham’s cell phone. Rogers 

testified that appellee had no company policy regarding the surveillance of 

the premises and that the reason for the surveillance cameras was to deter 

theft and robberies. (Id. at 400-401.) However, Rogers explained that the 

surveillance video would not depict the rug which allegedly caused appellant 
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to fall because it was designed to view the faces of people who came into 

the restaurant and later robbed it. (Id. at 506.)

The trial court determined that appellant was entitled to an adverse 

inference; so therefore, the trial court found that there was fault on the part 

of the appellee in destroying the evidence and that it was foreseeable that 

the destruction of the evidence would be prejudicial to appellee. While the 

entry of summary judgment is permitted as a sanction in spoliation cases, 

the severity of this sanction makes it an inappropriate remedy in all but the 

most egregious cases. See Tenaglia v. Proctor & Gamble, Inc., 737 A.2d 

306, 308 (Pa.Super. 1999).

For instance, in Parr v. Ford Motor Co., 109 A.3d 682 (Pa.Super. 

2014), appeal denied, 123 A.3d 331 (Pa. 2015), cert. denied, 136 S.Ct. 

557 (2015), Joseph and April Parr owned a 2001 Ford Excursion which they 

purchased used in 2007. On July 21, 2009, a van ran a stop sign and struck 

the Ford Excursion which caused it to spin clockwise, hit a guardrail, and roll 

down a 19-foot embankment. Joseph Parr was driving the Excursion. His 

wife, April Parr, their three children, and Joseph Parr’s mother were also in 

the vehicle. Some of the occupants sustained only minor injuries. However, 

Samantha Parr, a daughter, sustained a fractured skull, broken collarbone, 

fractured eye orbital, a lacerated liver, and facial lacerations. April Parr 

suffered a spinal cord injury such that she was quadriplegic. Id. at 686-687.
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Emergency responders were forced to use the jaws of life to extract 

April Parr from the vehicle. That process destroyed the roof and pillar 

structures of the vehicle. Shortly thereafter, the Excursion was released to 

the Parr’s insurer. The Excursion was then sold and destroyed. The Parrs 

commenced an action against Ford Motor Company and the car dealer who 

sold them the Excursion and alleged that the injuries suffered by April and 

Samantha Parr were the result of the crushing of the roof when it rolled 

down the embankment. The Parrs alleged that the roof and restraint system 

were defectively designed and alleged other claims based in negligence. 

Following a trial, the jury returned a verdict against the Parrs in the Court of 

Common Pleas of Philadelphia County. Id. The Parrs appealed to this court, 

which affirmed. Parr v. Ford Motor Company, No. 2793 EDA 2012, 

unpublished memorandum (Pa.Super. filed December 24, 2013). The Parrs 

moved for reargument, which this court granted. Parr, 109 A.3d at 687.

One of the issues raised by the Parrs was that the Court of Common 

Pleas of Philadelphia County erred and abused its discretion when it denied 

the Parrs’ motion in limine to preclude Ford Motor Company from 

presenting evidence that the Excursion was not preserved and obtaining a 

spoliation charge. The Parrs argued that the trial court erred when it 

presented a spoliation charge to the jury and permitted the introduction of 

spoliation evidence where Ford Motor Company was unable to show any 

prejudice that resulted from the destruction of the Excursion. Ford asserted 
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that the jury could infer that the Excursion contained evidence unfavorable 

to the Parrs who failed to preserve the vehicle. Ford argued that its inability 

to examine the Excursion negatively impacted the analyses by their experts. 

The Court of Common Pleas of Philadelphia County issued a permissive 

adverse inference instruction to the jury that it could draw a negative 

inference against the Parrs from the destruction of the Excursion. Id. at 

700-701.

This court determined that the Parrs were aware the Excursion could 

be used as evidence and that the destruction of the Excursion prejudiced 

Ford Motor Company. Ford Motor Company had sought a grant of summary 

judgment by the Court of Common Pleas of Philadelphia County as a 

sanction for the spoliation of evidence. This court determined that that was 

a very extreme measure and concluded that the Court of Common Pleas of 

Philadelphia County did not abuse its discretion when it issued the lesser 

permissive adverse inference instruction. Id. at 703-704.

Here, the trial court also issued an adverse inference instruction to 

itself as there was no jury. The destruction of the Excursion in Parr was 

potentially much more prejudicial to Ford Motor Company than the 

destruction of the surveillance videotape was here. Given that this court 

determined in Parr that there was no abuse of discretion when an adverse 

inference was issued rather than summary judgment, this court concludes 

that the trial court did not commit an abuse of discretion when it sanctioned 
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appellee with an adverse inference rather than a harsher penalty favored by 

appellant.

Turning to the next prong, appellant argues that it is plain that the 

lack of video surveillance seriously prejudiced her from presenting her case. 

The Restatement (Second) of Torts § 343 defines the duty that a possessor 

of property owes to a business invitee as follows:

A possessor of land is subject to liability for physical 

harm caused to his invitees by a condition on the 

land, if but only if, he:

(a) knows or by the exercise of reasonable 

care would discover the condition, and 

should realize that it involves an 

unreasonable risk to such invitees, and

(b) should expect that they will not discover 

or realize the danger, or will fail to 

protect themselves against it, and

(c) fails to exercise reasonable care to 

protect them against the danger.

Restatement (Second) of Torts § 343 (1965).

Appellant argues that, under her theory of the case, the mat or rug in 

appellee’s entranceway was seriously defective and presented an 

unreasonable tripping hazard. Appellant also alleged that the hazard could 

not be remedied without removing the mat. She believes that the video 

would have corroborated her theory and would help make her testimony 

appear more credible in the face of cross-examination which was designed to 

create doubts as to whether her fall was caused by the condition of the mat 
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and was instead caused by her own physical condition. According to 

appellant, the video surveillance record would have clearly settled the issues 

of whether appellant tripped on the mat, whether the entranceway was 

brightly lit or dark, and whether appellant was entering or leaving the 

restaurant. Similarly, appellant argues that the surveillance video would 

establish that appellee had constructive notice of the defective mat. When 

attempting to establish constructive notice, a plaintiff does not have to 

produce testimony as to how long a defect existed if “(1) the defect is of a 

type with an inherently sustained duration, as opposed to a transitory spill

which could have occurred an instant before the accident; and (2) a witness 

saw the defect immediately before or after the accident.” Neve v. 

Insalaco’s, 771 A.2d 786, 791 (Pa.Super. 2001). While there was 

conflicting evidence from the two sides concerning the condition of the mat, 

appellant argues that the surveillance video would have recorded a woman 

clad in Muslim garb attempting to get the mat to lie flat after appellant fell. 

This video would have shown that the defect in the mat was of a type with 

an inherently sustained duration as opposed to a transitory condition caused 

by foot traffic in the foyer.

While this court agrees that appellant may have suffered some 

prejudice as a result of the spoliation of this evidence, this court is not 

persuaded that the trial court abused its discretion when it granted an 

adverse inference as opposed to a more severe sanction favored by 
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appellant. Once again looking to Parr, this court determined that Ford 

Motor Company was clearly prejudiced by the destruction of the Excursion 

because multiple expert witnesses stated that their analyses would have 

been greatly aided had they been able to examine the Excursion. Even with 

this great prejudice, the court found no abuse of discretion when the Court 

of Common Pleas of Philadelphia County issued only a permissive adverse 

inference. Parr, 109 A.3d at 703-704. Here, where Rogers testified that 

the surveillance video would not have shown the mat itself, this court 

concludes that the prejudice was less than that suffered in Parr where this 

court found no abuse of discretion for the imposition of an adverse 

inference. Consequently, this court concludes there was no abuse of 

discretion based on the prejudice suffered here.

As to the third prong of Mount Olivet, appellant argues that the 

adoption of the limited adverse inference imposed by the trial court did not 

measure up to the seriousness of appellee’s failure to preserve the video 

surveillance evidence. Appellant argues that the seriousness of this action 

required the trial judge to enter judgment in appellant’s favor as a matter of 

law. While the entry of summary judgment is permitted as a sanction in 

spoliation cases, the severity of this sanction makes it an inappropriate 

remedy in all but the most egregious cases. See Tenaglia v. Proctor & 

Gamble, Inc., 737 A.2d 306, 308 (Pa.Super. 1999). Given that the trial 

court apparently accepted the testimony that the surveillance videotape 
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would not include pictures of the mat in question and there is no evidence 

that the video was destroyed to avoid its use at trial, the trial court did not 

abuse its discretion when it imposed the sanction that it did. While appellant 

can illustrate that she was entitled to the benefit of a sanction, she does not 

persuade this court that the trial court abused its discretion when it imposed 

an adverse inference sanction.

Appellant next contends that the adverse inference combined with 

other evidence of record, including the testimony of appellee’s own 

witnesses, entitled appellant to judgment as a matter of law on the issue of 

liability. Specifically, appellant argues that her testimony that she tripped 

and fell due to a defect in the mat combined with the testimony of Rogers 

and Rasheen Davis (“Davis”), the host for appellee, met the requirements 

for her cause of action.

When reviewing the propriety of an order granting or 

denying judgment notwithstanding the verdict, we 

must determine whether there is sufficient 

competent evidence to sustain the verdict. Johnson 

v. Hyundai Motor America, 698 A.2d 631, 635 

(Pa.Super.1997), appeal denied, 551 Pa. 704, 712 

A.2d 286 (1998) (citations omitted); Rowinsky v. 

Sperling, 452 Pa.Super. 215, 681 A.2d 785, 788 

(1996), appeal denied, 547 Pa. 738, 690 A.2d 237 

(1997) (quoting Samuel Rappaport Family

Partnership v. Meridian Bank, 441 Pa.Super. 194, 

657 A.2d 17, 20 (1995)). We must view the 

evidence in the light most favorable to the verdict 

winner and give the verdict winner the benefit of 

every reasonable inference arising therefrom while 

rejecting all unfavorable testimony and inferences. 

Johnson, supra at 635; Rowinsky, supra at 788. 

We apply this standard in all cases challenging the 
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grant of a motion for J.N.O.V. Shearer v. Reed, 

286 Pa.Super. 188, 428 A.2d 635, 637 (1981).

Pennsylvania law makes clear that a judgment 

notwithstanding the verdict is proper only in clear 

cases where the facts are such that no two 

reasonable minds could disagree that the verdict was 

improper. Johnson, supra at 635; Rowinsky, 

supra at 788. Questions of credibility and conflicts 

in evidence are for the fact-finder to resolve. 

Commonwealth, Department of Transportation 

v. Patton, 546 Pa. 562, 568, 686 A.2d 1302, 1305 

(1997); Miller v. Brass Rail Tavern, Inc., 702 

A.2d 1072, 1076 (Pa.Super.1997) (citation omitted). 

This Court will not substitute its judgment based 

upon a cold record for that of the fact-finder where 

issues of credibility and weight are concerned. Id.

Birth Center v. St. Paul Companies, Inc., 727 A.2d 1144, 1154-1155 

(Pa.Super. 1999).

With respect to this issue, the trial court, as the trier-of-fact, 

concluded that appellant failed to establish that appellee had actual or 

constructive notice of any harmful condition in the mat:

Notwithstanding [a]ppellant’s assertions the 

[appellee’s] witness who was present at the time of 

the accident, Mr. Rasheen Davis, never admitted to 

any knowledge of any defect in the rug. Indeed, 

Mr. Davis repeatedly denied under questioning from 

both [a]ppellant and [appellee] counsel that there 

was any defect in the rug which he checked every 

15 minutes as part of his job. Appellant did not 

present sufficient credible evidence to establish that 

[appellee] had actual or constructive notice of a 

dangerous condition found in the rug. Therefore, 

Appellant did not meet its burden of proof and the 

Court found in favor of the [appellee]. As such, the 

Court properly adjudicated the matter.

Trial court opinion, 10/7/15 at 6-7 (citation omitted).
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As finder-of-fact, the trial court has the authority to make credibility 

determinations. This appellate court will not disturb those credibility 

determinations. Holt v. Navarro, 932 A.2d 915, 919 (Pa.Super. 2007), 

appeal denied, 951 A.2d 1164 (Pa. 2008). Rogers testified that had this 

alleged defect been present, it would have been noticed by appellee’s 

employees very quickly. (Notes of testimony, 3/12/15 at 460-461.) Rogers 

also testified that he never saw mats at the City Line Avenue Friday’s in the 

condition which appellant described. (Id. at 444.) He also never saw the 

mats rise up in any direction. (Id. at 458.) Davis, the host on duty at the 

time, testified that he checked the mat at the entrance every 15 minutes or 

so but did not see any irregularities with it. (Notes of testimony, 3/11/15 at 

323, 351-352.)

Although appellant asserts that the testimony of Rogers and Davis 

supports her position, it appears the reverse is true. Appellant has failed to 

establish that she was entitled to judgment in her favor as she failed to 

establish that no two reasonable minds could disagree that the verdict was 

improper.

Finally, appellant argues that the trial court erred when it failed to 

vacate the verdict for appellee as against the weight of the evidence.

In determining whether the jury’s[1] verdict was 

against the weight of the evidence, we note our 

standard of review:

 

1 Here, there was no jury as the trial court conducted a non-jury trial. 
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A new trial based on weight of the 

evidence issues will not be granted 

unless the verdict is so contrary to the 

evidence as to shock one’s sense of 

justice; a mere conflict in testimony will 

not suffice as grounds for a new trial. 

Upon review, the test is not whether this 

Court would have reached the same 

result on the evidence presented, but, 

rather, after due consideration of the 

evidence found credible . . . and viewing 

the evidence in the light most favorable 

to the verdict winner, whether the court 

could reasonably have reached its 

conclusion. Our standard of review in 

denying a motion for a new trial is to 

decide whether the trial court committed 

an error of law which controlled the 

outcome of the case or committed an 

abuse of discretion.

Elliott v. Ionta, 869 A.2d 502, 504 (Pa.Super. 2005), quoting Daniel v. 

William R. Drach Co., Inc., 849 A.2d 1265, 1267-1268 (Pa.Super. 2004) 

(citations omitted). 

Essentially, appellant here is just making another argument that Davis’ 

testimony, that he did not notice any defect in the mat when he checked it 

every 15 minutes, was not credible and that the trial court relied too heavily 

on this testimony. Appellant challenges the credibility determination of the 

fact-finder. Appellant fails to establish that the trial court’s verdict shocked 

one’s sense of justice or that the trial court committed an error of law or an 

abuse of discretion.

Judgment affirmed.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/6/2016