Farley v. Bonefish Grill, LLC

• Court: Superior Court of Delaware
• Decided: February 22, 2023
• Docket: N17C-12-265 DJB
• Status: Published

Opinion

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

PATRICIA FARLEY, ) ) Plaintiff(s), ) ) v. ) C.A. NO. N17C-12-265 DJB ) BONEFISH GRILL, LLC, ) ) Defendant(s). )

OPINION

On Plaintiff’s Renewed Motion for New Trial with Spoliation Instruction - DENIED

Date Argued: November 21, 2022 Date Decided: February 22, 2023

Sean Gambogi, Kimmel, Carter, Roam, Peltz & O’Neill, P.A., Wilmington, Delaware; for Plaintiff.

Kevin Connors, Marshall, Dennehey, Warner, Coleman & Goggin, Wilmington, Delaware; for Defendant.

BRENNAN, J.

1 I. INTRODUCTION Patricia Farley (hereinafter “Plaintiff”) filed this Motion for a New Trial

following a jury verdict in favor of Defendant Bonefish Grill, LLC (hereinafter

“Defendant”). Plaintiff filed suit against Defendant, claiming it negligently failed

to clean the floor of its restaurant, which caused her to fall and resulted in injuries.

At trial, it was disclosed for the first time, via the restaurant manager’s testimony,

that the restaurant had been equipped with multiple surveillance cameras, despite

multiple discovery requests regarding the existence of surveillance.

Plaintiff’s Motion for New Trial seeks a spoliation instruction, as all parties

agree that any video from inside of the restaurant no longer exists. The trial judge

deferred a decision on the motion pending further discovery into the matter.1

Discovery is now complete, and the matter is ripe for adjudication. For the following

reasons, Plaintiff’s Renewed Motion for New Trial with Spoliation Instruction is

DENIED.

II. BACKGROUND Plaintiff slipped and fell at a Bonefish restaurant on April 18, 2017. Shortly

after the fall, John F. White (hereinafter “White”), an insurance claims adjuster for

Defendant, initiated an investigation into the incident. As part of the investigation,

1 In between the date of trial and the filing of the instant motion, the Trial Judge retired and a new presiding Judge was assigned. 2 White emailed restaurant management seeking to review video surveillance, if any,

of the incident but did not receive a response.2 On April 25, 2017, White denied

Plaintiff’s claim for compensation.3 On December 19, 2017, Plaintiff initiated the

instant action, alleging Defendant was negligent in maintaining and supervising its

property, which caused her fall and resulting injuries.4

During pretrial discovery, Defendant responded to Form 30 Interrogatory

Responses. Relevant here, Question #4 requested Defendant “[i]dentify all

photographs, diagrams, or other representations made in connection with the matter

in litigation….”5 In response, Defendant represented there were photographs of the

incident, but did not disclose there were security cameras on its premises.6

On January 31, 2018, Plaintiff served Bonefish with additional interrogatories

and requests for production, and specifically sought, “[c]opies of any photographs

and/or videos of the accident scene.”7 In response, Defendant attached five

photographs but did not provide any video or inform Plaintiff of the presence of

2 Pl.’s Mot. for New Trial, Ex. F at 35 – 36, Aug. 19, 2022 (D.I. 132). White’s claim notes reflect that his email went unanswered. However, White could not recall whether a Bonefish employee responded to his request over the phone or in some other manner. Id. at 40 - 48. 3 Id., Ex. A (D.I. 132). 4 D.I. 1. 5 D.I. 6. 6 Id. 7 Pl.’s Mot. for New Trial, Ex. C (D.I. 132); Request for Product #5. 3 security cameras on its premises.8 Interrogatory #47 asked, “[w]as any video of the

Plaintiff and/or the accident scene captured on the day of the accident within the

restaurant?”9 Defendant simply responded, “No.”10

The case proceeded to trial on October 21, 2019. Ryan Parsley (hereinafter

“Parsley”), a manager of the Bonefish restaurant at the relevant time, testified the

restaurant was equipped with “about nine” surveillance cameras.11 Parsley could not

recall what specific areas of the restaurant were under surveillance, and when asked

if he reviewed any video footage during his investigation of Plaintiff’s fall, Parsley

stated “I do not believe so.”12

Plaintiff’s counsel objected and sought a spoliation instruction at that time

based upon Defendant’s failure to disclose and preserve any video surveillance from

the day of the incident. The trial judge denied Plaintiff’s request, finding the record

as it then-existed insufficient to support a finding that Defendant intentionally or

recklessly failed to preserve the video footage.13 After a four-day trial, the jury

returned a verdict in favor of Defendant.

8 Id. 9 Id. 10 Id. 11 Parsley Dep. at 77, Nov. 20, 2019 (D.I. 56). 12 Id. at 35, 77. 13 Prayer Conference Tr. at 39, Nov. 18, 2019 (D.I. 52). 4 Following the verdict, Plaintiff informed opposing counsel of her intent to

move for a new trial and requested further information regarding the status of the

video cameras and the footage recorded on the day of the incident. On October 30,

2019, Defense counsel replied:

My client has advised that video footage for any given day is only kept for 21 days. Thus, when plaintiff requested the video of plaintiff and/or the incident site, [Defendant] correctly advised that it had none. In addition, [Defendant] did not have 9 cameras, so that former employee Ryan Parsley’s recollection of that number at trial was inaccurate. Lastly, my client has confirmed that no camera was focused upon the location of plaintiff’s fall in any event.14 That same day, Plaintiff moved for a new trial.15 In response, the trial Court

deferred decision on the motion and permitted limited discovery into the location of

the cameras to expand the record regarding the spoliation issue.16

During post-trial discovery, Defendant admitted that no individuals reviewed

or preserved a copy of the surveillance footage captured on April 18, 2017.17

Defendant further stated that all video surveillance is systematically overwritten

after 21 days.18 Concerning the placement of its cameras, Defendant revealed the

restaurant was equipped with a total of six (6) cameras. Two of the six were outdoor

14 Def.’s Resp. to Mot. for New Trial, Ex. J, Dec. 9, 2019 (D.I. 58). 15 D.I. 49. Plaintiff subsequently filed a revised motion for new trial on December 2, 2019. D.I. 57. 16 Def.’s Resp. in Opp’n, Ex. H at 43 - 45, Sept. 19, 2022 (D.I. 138). 17 Id., Ex. I at Interrog. #1-2. 18 Id. at Interrog. #3. 5 cameras, with one facing the main entrance and the other facing the back door to the

restaurant. The remaining four (4) were interior cameras, which captured the bar,

the manager’s office, a back hallway, and the back of the kitchen/mop station.19

There were no cameras within the restaurant that covered the main dining area where

Plaintiff had fallen.

In addition to the supplemental discovery responses, Plaintiff took the

deposition of John White, the insurance claim adjuster, and Adam Lavin, the

managing partner of the Bonefish restaurant at the time of the incident.

Additionally, Plaintiff retained an expert to opine on the standard of care for a

business in retaining and reviewing video. Plaintiff’s expert opined Defendant

should have retained and reviewed the now-debated video.

III. STANDARD OF REVIEW

Under Superior Court Rule 59(a), “[a] new trial may be granted … for any of

the reasons for which new trials have heretofore been granted in the Superior

Court.”20 This Court has discretion to grant a motion for new trial in the interest of

avoiding injustice.21 In exercising its discretion, the “Court must determine that the

19 Id., Ex. K. 20 Del. Super. Ct. Civ. R. 59(a). 21 McCloskey v. McKelvey, 174 A.2d 691, 693 (Del. Super. 1961) (internal citation omitted). 6 verdict is manifestly and palpably against the weight of the evidence, or for some

reason justice would be miscarried if the decision were to stand.”22

IV. DISCUSSION

Plaintiff maintains that a spoliation instruction, and thus a new trial, is

warranted because Defendant was aware of Plaintiff’s injury claim, but negligently

failed to review or preserve any camera footage from the day of the incident.

Further, Plaintiff contends that Defendant was negligent because they were on notice

of the potential relevance of any surveillance video because the insurance adjuster

specifically requested it during the claim investigation.

In response, Defendant argues that Plaintiff requested footage of the fall scene

and any video of Plaintiff inside the restaurant, which did not exist since none of the

video captured the area of the fall. Defendant supports the contention that no such

video could have existed based upon the placement of cameras throughout the

restaurant. As a result, Defendant claims that it could not have intentionally or

recklessly destroyed evidence that did not exist. Second, Defendant claims that any

video recorded on the day of the incident is irrelevant because it would not show

Plaintiff’s fall or any circumstances surrounding Plaintiff’s fall.

22 Optical Air Data Sys., LLC v. L-3 Commc’ns Corp., 2020 WL 2563698, at *2 (Del. Super. Ct. May 21, 2020) (citing McCloskey, 174 A.2d at 693). 7 The Delaware Supreme Court set forth the standard for when an adverse

inference instruction regarding spoliation is appropriate in its 2006 decision in Sears,

Roebuck, & Co. v. Midcap. In its decision, the Court ruled that “[a]n adverse

inference instruction is appropriate where a litigant intentionally or recklessly

destroys evidence, when it knows that the item in question is relevant to a legal

dispute or it was otherwise under a legal duty to preserve the item.”23 The party

seeking the adverse inference must also “make some showing that the allegedly

destroyed evidence existed and supported the aggrieved party’s position.”24

Even without a finding that Defendant intentionally or recklessly destroyed

the April 18, 2017, surveillance footage, any now-overwritten video that existed at

the time of Plaintiff’s fall is not sufficiently relevant to warrant a new trial. As noted

above, the post-trial discovery revealed the Bonefish restaurant in question was

equipped with six security cameras. All parties agree that the cameras could not

have captured Plaintiff’s fall. Plaintiff, however, maintains that nonetheless,

Defendant’s failure to review and preserve any video from the day of the incident

deprived her of a fair trial because other recorded and potentially relevant evidence

was lost.

23 Sears, Roebuck, & Co. v. Midcap, 893 A.2d 542, 552 (Del. 2006). 24 TR Investors, LLC v. Genger, 2009 WL 4696062, at *17 (Del. Ch. Dec. 9, 2009). 8 Plaintiff relies heavily on Foreman v. Two Farms, Inc.25 for the proposition

that the lost video footage is relevant even though it would not have shown her fall.

The Foreman plaintiff slipped and fell on a sidewalk owned and operated by the

defendants and alleged defendants were negligent in failing to clear snow and ice off

the sidewalk, which caused her to fall. 26 The defendants reviewed and made a copy

of surveillance footage facing the sidewalk, but ultimately lost the video sometime

afterwards during office renovations.27 While defendants claimed that the video was

irrelevant because plaintiff’s fall was obstructed from the camera’s view, the Court

disagreed and found the video relevant because it would have shown the weather

conditions at the time of plaintiff’s fall and whether other individuals had trouble

walking on the sidewalk.28 Based on those facts, the Foreman court held that a

spoliation instruction was warranted.29

Here, Plaintiff claims the camera facing the restaurant’s mop station is

positioned “where one would expect an employee to go if a spill was being

cleaned.”30 Plaintiff thus insulates that video potentially could have captured

25 2018 WL 4846341 (Del. Super. Ct. Oct. 4, 2018). 26 Id. at *1. 27 Id. at *1-2. 28 Id. The Court also noted that the lost video “would show the potential existence or lack of existence of alternative routes of ingress or egress,” and either corroborate or refute plaintiff’s cell phone picture depicting the sidewalk’s condition. Id. 29 Id. at *5. 30 Pl.’s Mot. for New Tr. at 8. (D.I. 132). 9 evidence of a Bonefish employee preparing to clean or returning from cleaning a

spill at the time Plaintiff fell. The implicit suggestion, however, relies wholly on

speculation. Neither party has presented the Court with witness testimony or any

other evidence indicating that a Bonefish employee cleaned a spill shortly before or

after Plaintiff’s fall. Without any circumstantial or corroborating evidence, Plaintiff

fails to properly support her request for a spoliation adverse inference instruction.31

Plaintiff further contends that the lost video evidence is relevant to impeach

the trial testimony of Mark Ostan, who testified Plaintiff tripped due to her own

negligence. Thereafter, Ostan claimed that he went to the manager’s office and

informed Parsley about the incident. Plaintiff asserts the camera directed at the

manager’s office would have served to impeach Ostan’s testimony by showing that

Parsley was not in his office at the time. This argument fails to support the relevance

of this purported recording because Parsley himself testified at trial that he was

leading Plaintiff to her seat at the time of the fall and the jury was presented with

that testimony which served to impeach Ostan.32 Further, Parsley’s location is not

31 See Genger, 2009 WL 4696062, at *17 (“Additionally, to obtain an adverse inference, the aggrieved party must make some showing that the allegedly destroyed evidence existed and supported the aggrieved party’s position.”); Beard Research, Inc. v. Kates, 981 A.2d 1175, 1193 (Del. Ch. 2009) (“To obtain an adverse inference, however, a party must offer more than mere speculation and conjecture[.]”). 32 Parsley Dep. at 15, 16 (D.I. 56). 10 relevant to the negligence claim at issue. A video of the manager’s office provides

no probative evidence as to whether Bonefish’s negligence caused the fall.

Finally, Plaintiff raised a concern that ruling in Defendant’s favor would

incentivize future litigants to evade liability by destroying or declining to preserve

video evidence. That is not a concern here, as the video in question here is found to

be irrelevant to the disputed issue at trial. Under these circumstances, declining to

issue an adverse inference instruction would not serve as an invitation for future

litigants to spoliate evidence. While it was certainly not the best practice for

Defendant’s to have failed to preserve any video evidence here, or respond to

discovery in such a fashion, their failure to preserve the surveillance here does not

rise to the level warranted to grant a new trial.

In contrast to Foreman, Plaintiff alleged Defendant was negligent for failing

to clean a slippery substance from the floor of the main dining area, which caused

her fall. Because not one of the six surveillance cameras was directed at the main

dining area, the unpreserved video would not have shown either Plaintiff’s fall or

any alleged cause of Plaintiff’s fall. Therefore, the probative value of the lost video

here is significantly lower than the video in Foreman.

11 For the foregoing reasons, Plaintiff’s Renewed Motion for a New Trial is

IT IS SO ORDERED.

__________________________ Judge Danielle J. Brennan