AIELLO v. HARRAH'S PHILADELPHIA CASINO & RACETRACK et al
MEMORANDUM SIGNED BY HONORABLE CHAD F. KENNEY ON 7/15/21. 7/16/21 ENTERED AND COPIES E-MAILED.(va, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
CHESTER DOWNS, LLC d/b/a HARRAH’S
PHILADELPHIA CASINO AND RACETRACK, :
July 15, 2021
This suit arises from a slip and fall at Harrah’s Philadelphia Casino and Racetrack, which
placed the then-seventy-three-year-old Plaintiff Francis Aiello in the hospital with serious
injuries including a fractured nose, ribs, various bumps and bruises, and a brain bleed. Plaintiff
avers that Harrah’s breached its duty of care owed to business invitees insofar as it failed to
remediate liquid on the floor at the base of the escalator, which he alleges caused his fall.
Defendant Harrah’s moves for summary judgment on the grounds that Plaintiff failed to prove
there actually was a hazardous condition at the base of the escalator, and even if there was,
Plaintiff has offered no evidence Harrah’s had sufficient notice to be liable.
I. FACTUAL BACKGROUND
Francis Aiello (“Plaintiff”) is an army veteran, cancer survivor, devoted husband, and
proud father and grandfather. ECF No. 18, Ex. E Aiello Deposition (Aiello Depo.) at 11:1-22.
Defendant Chester Downs Marina, LLC d/b/a Harrah’s Philadelphia Casino and Racetrack
(“Harrah’s”) is held by Caesars Holding, Inc. (“Caesars”) as sole member. Def’s Notice of
Removal at 3. Caesars is a corporation incorporated under the laws of the State of Delaware,
with its principal place of business located in Nevada. Id. Plaintiff is a resident of Alden,
Pennsylvania, and initially filed this action in the Delaware County Court of Common Pleas. Id.
at 1-2. On or about December 1, 2020, Harrah’s removed the case to this Court under diversity of
citizenship pursuant to 28 U.S.C. § 1332(a). 1 Id.
On September 21, 2019, Plaintiff and his wife went to Harrah’s—as they did most
Saturday evenings—to meet friends, socialize, and gamble. Aiello Depo. at 21:4-14. After dinner
and a few hours of gambling, Plaintiff and his wife decided to head home between 8 p.m. and 9
p.m. Id. at 22:12-13. As Plaintiff walked through the atrium toward his car, he fell backward as
his foot hit the metal plate just prior to the escalator. Id. at 25:6-8. Plaintiff said he was about to
descend the escalator when “the next thing I knew, I was getting up off the floor . . . looking
down at blood.” Id. at 24:7-10. Initially, Plaintiff testified he did not know what caused him to
fall, nor did he recall which direction he fell, and initially told a security guard his shoes made
him fall—though Plaintiff later said he does not recall saying this. Id. at 28:7-9; 32:13. The
relevant portion of Plaintiff’s deposition reads:
Okay. After you got up off the floor, sir, did you look down at the floor?
I guess. I saw the blood.
Did you see anything else on the floor when you looked down?
And you said you didn’t know what caused you to fall, correct, sir?
Id. at 28:7-9; 32:13. Responding to Harrah’s interrogatories, answered that he felt a wetness on
his pants—though he could not tell what kind of liquid made his pants wet—and therefore
Because the Parties are completely diverse and the amount in controversy exceeds $75,000, this
Court has jurisdiction pursuant to 28 U.S.C. § 1332(a).
assumed the floor was wet. See Pl’s Resp. Int. 12. However, Plaintiff said he saw blood on the
floor, but nothing else. Id. at 28:4-6. Michelle Aiello, the only witness and Plaintiff’s wife, did
not see him fall and did not know what caused it, either. Id. at 29: 8-13. Though the fall occurred
in the crowded atrium, Plaintiff had not seen anyone else slip and fall at the same spot. Id. at
As a result of the accident, Plaintiff—then seventy-three years old—suffered a fractured
nose, two fractured ribs, two blood spots on the brain, and various bumps and bruises. Id. at 2829:24-1. After the fall, security helped Plaintiff and offered him a wheelchair. Id. at 30:5-14.
Plaintiff initially declined to go to the hospital, preferring to just go home, but changed his mind
after being told he looked “beat up.” Id. at 30:13-14. He left Harrah’s in an ambulance and spent
the night in the hospital. Id. at 40:2-9. Due to his brain injuries, Plaintiff visited a neurologist two
weeks after the fall. Id. at 47:13-15.
Harrah’s has an extensive security team, with officers assigned at the entrance, different
zones of the casino floor, the racing floor, and outside the casino. Moore Depo. at 37:7-14. While
no security officer is specifically assigned to the atrium, extra security personnel are assigned as
“rovers” and respond to the needs of the entire casino. Id. at 38:13-19. All Harrah’s employees
must notify the proper department anytime a beverage or liquid is spilled on the ground.
Hennigan Depo. at 16:13-16. Michelle Hennigan was one of the first Harrah’s employees to
respond to the accident, and she did not recall seeing anything on the floor. Id. at 40:2-6.
Furthermore, employees were required to photograph the alleged area where Plaintiff slipped,
and document Plaintiff’s footwear; those photos did not reveal any hazardous liquid. Moore
Depo. at 43:4-13. There was no indication of water, debris, or any other hazard on the ground at
the time of the incident. Id. at 47:1-4.
Harrah’s surveillance team also had an unofficial policy of saving an hour’s worth of
footage prior to any accident that occurred on the premises, although that did not happen in this
case. See Shreckengost Depo. at 21:2-8:
All right. And so I think you said it was Harrah’s policy and procedure that when
there’s an incident, you’re supposed to keep one hour of the footage prior to the
Yeah, it’s not specifically a policy and procedure. It’s not written anywhere in my
policies and procedures, it’s just something that we decided to do for risk
management from Lawrence. And it was basically a request when I first got on
property to – I don’t remember when, but to assist in matters like this, just in case
anybody needed to, you know, take a look at, hey, what happened prior, or ask
Id. at 24:7-19. Usually, the video is recorded and saved to a drive, but in this case—according to
Director of Surveillance Shreckengost—human error prevented the film’s preservation. Id. at
22:1-10. Although the full hour prior is lost, Harrah’s did produce footage that ranges from
roughly a minute prior to Plaintiff’s fall up to his departure from the casino. Moore Depo. at
18:5-23. Additionally, the surveillance report was written in such a way that the footage from an
hour prior to the accident may not have even been viewed at all. Shreckengost Depo. at 40:1017. Without saving the video, cameras will record for seven or thirty days before being recorded
over. Id. at 22:14-19. In the atrium, the cameras re-recorded after seven days. Id. at 24:2-6.
At issue here is whether there was a hazardous condition on the metal plate at the base of
the escalator, and if there was, did Harrah’s have adequate notice, either actual or constructive,
of the hazard prior to Plaintiff’s accident.
II. PROCEDURAL HISTORY
Plaintiff filed a complaint against Harrah’s asserting claims for negligence on October
28, 2020 in the Delaware County Court of Common Pleas. ECF No. 1, Ex. “A.” On or about
December 1, 2021, the case was removed to federal court based on diversity jurisdiction. ECF
No. 1. On January 13, 2021, Harrah’s served Requests for Plaintiff’s Answers to Interrogatories
and Requests for the Production of Documents to Plaintiff. In February 2020, Plaintiff responded
to Harrah’s Interrogatories. On June 2, 2021, Harrah’s filed a Motion for Summary Judgment.
ECF No. 18. On June 16, 2021, Plaintiff filed a Response to Harrah’s Motion for Summary
Judgment. ECF No. 19. On June 22, 2021, Harrah’s replied to Plaintiff’s Opposition to Harrah’s
Motion for Summary Judgment. ECF No. 20.
III. STANDARD OF REVIEW
Summary judgment is appropriate if the moving party shows there is “no genuine dispute
as to any material fact.” Fed. R. Civ. P. 56(a). In reaching this decision, the Court must
determine whether the “pleadings, depositions, answers to interrogatories, admissions, and
affidavits show there is no genuine issue of material fact.” Favata v. Seidel, 511 Fed. App’x 155,
158 (3d Cir. 2013). A dispute is “genuine” only if there is a sufficient evidentiary basis on which
a reasonable jury could find for the non-moving party. Kaucher v. Cty. of Bucks, 455 F.3d 418,
423 (3d Cir. 2006) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). For a fact
to be “material,” it must have the “potential to alter the case.” Favata, 511 Fed. App’x at 158.
Once the moving party “points to evidence demonstrating no issue of material fact exists, the
non-moving party has the duty to set forth specific facts showing that a genuine issue of material
fact exists and that a reasonable factfinder could rule in its favor.” Id. (quoting Azur, 601 F.3d at
When deciding a motion for summary judgment, “the evidence of the nonmovant is to be
believed, and all justifiable inferences are to be drawn in his favor.” Id. (quoting Chambers ex
rel. Chambers v. Sch. Dist. of Phila. Bd. of Educ., 587 F.3d 176, 181 (3d Cir. 2009)). The
Court’s job is not to resolve the disputed issues of fact, but rather to determine whether any
factual issues exist. Anderson, 447 U.S. at 247-49. If a factual issue arises which cannot be
resolved without a credibility determination, the Court must credit the nonmoving party’s
evidence over that presented by the moving party. Id. at 255. If there is no factual issue, and if
only one reasonable conclusion could arise from the record regarding the potential outcome,
summary judgment must be awarded in favor of the moving party. Id. at 250.
Harrah’s argues it is entitled to summary judgment on Plaintiff’s negligence claim
because (1) Plaintiff has failed to provide evidence a dangerous condition existed, and (2) even if
there was a dangerous condition, Defendant did not breach its duty of care because Defendant
lacked actual or constructive notice of the alleged hazard. Def’s Mot. at 10. ECF 18.
A. Premises Liability Under Pennsylvania Law
Under Pennsylvania Law, 2 the elements of a negligence cause of action are: (1) a duty or
obligation recognized by law, requiring the actor to conform to a certain standard of conduct for
the protection of others against unreasonable risks; (2) a failure to conform to the standard
required; (3) a causal connection between the conduct and the resulting injury; and (4) actual loss
or damage resulting in harm to the interests of another. Bowman v. Wal-Mart Stores East, LP,
Because jurisdiction is based on diversity of citizenship, the Court applies the substantive law
of Pennsylvania. Sheridan v. NGK Metals Corp., 609 F.3d 239, 253 (3d Cir. 2010).
No. 14-3182, 2015 WL 568570, at *3 (E.D. Pa. Feb 10, 2015) (citing Nw. Mut. Life Ins. Co. v.
Babayan, 430 F.3d 121, 139 (3d Cir. 2005)).
When the case is based on premises liability, the standard of care depends on whether the
person entering the establishment was a trespasser, licensee, or invitee. McDowell v. Moran
Foods, LLC, 680 Fed. App’x 72, 72 (3d Cir. 2017) (citing Carrender v. Fitterer, 469 A.2d 120,
123 (Pa. 1983)). A business invitee is “a person who is invited to enter or remain on land for a
purpose directly or indirectly connected with business dealings with the possessor of the land.”
Falcone v. Speedway LLC, No. 14-2188, 2017 WL 220326, at *2 (E.D. Pa. Jan 19, 2017)
(quoting Charlie v. Erie Ins Exch., 100 A.3d 244, 253 (Pa. Super Ct. 2014)). A customer is a
business invitee. Pace v. Wal-Mart Stores East, LP, 337 F. Supp. 3d 513, 518 (E.D. Pa. 2018).
A landowner owes the highest duty of care to an invitee. Falcone, 2017 WL 220326, at
*2 (citing Traux v. Roulhac, 126 A.3d 991, 997 (Pa. Super Ct. 2015)). A landowner must protect
a business invitee not only from known dangers, but also from “dangers that might be
discoverable with reasonable care.” Id. Additionally, a possessor of land is subject to liability for
harm caused by his invitees by a condition on the land if, but only if, he (1) knows or by the
exercise of reasonable care would discover the condition and should realize that it involves an
unreasonable risk of harm to such activities; (2) should expect they will not discover or realize
the danger, or will fail to protect themselves from it; and (3) fails to exercise reasonable care to
protect them against danger. King v. Rocktenn CP, LLC, 643 Fed. App’x 180, 182 (3d Cir.
2016) (quoting Atkins v. Urban Redevelopment Auth. of Pittsburgh, 414 A.2d 100, 103-04 (Pa.
1980) (quoting Restatement (Second) of Torts § 343 (1965)).
Plaintiffs generally have a difficult task proving slip and fall cases that involve foreign
substances on the floor of a store. David by Berkeley v. Pueblo Supermarket of St. Thomas, 740
F.2d 230, 233-34 (3d Cir. 1984). In such cases, the main issues involve: (1) was there a
substance on the floor? (2) What notice, either actual or constructive, did the employees or the
management have of this particular condition which involves “an unreasonable risk of harm” to
the business invitees? (3) Absent direct testimony proving actual notice, was the foreign
substance on the floor long enough to give management or employees constructive notice of this
potential unreasonable risk of harm? Id. (citing Restatement (Second) of Torts § 343 (1965)).
Here, Plaintiff presents insufficient evidence—even when viewed in a light most
favorable to Plaintiff—to raise a genuine dispute as to whether there was a foreign substance at
the base of the escalator, and thus fails to satisfy his burden of proof that a hazardous condition
existed. First, in his deposition, Plaintiff testified that he did not see any foreign substances in the
area he fell, and further testified he did not know what caused him to fall:
Okay. Alright. What do you believe caused you to fall on September 21st, 2019?
I don’t know.
See relevant portions of Aiello Depo. at 24:1-3.
Okay. After you got up off the floor, sir, did you look down at the floor?
I guess. I saw the blood.
Did you see anything else on the floor when you looked down?
And you said you didn’t know what caused you to fall, correct, sir?
See Aiello Depo. at 28:1-9. The mere happening of an accident does not charge the defendant
with liability; rather, it is necessary for the Plaintiff to prove a specific fault or at least an
inference of negligence. See Angelellli v. Albert I. Mansmann Co., 77 A.2d 678, 680 (Pa. Super.
Second, the Court is unpersuaded by Plaintiff’s argument a jury could infer the existence
of a dangerous condition because his pants were dry prior to the fall and wet afterward. The mere
existence of a scintilla of evidence in support of the Plaintiff’s position is insufficient; there must
be evidence on which the jury could reasonably find for the Plaintiff. Wood v. Speedway, LLC,
No. 2:17-cv-1408, 2019 WL 2248671, at *3 (W.D. Pa. May 24, 2019). Although elements of a
cause of action may be established by drawing inferences from circumstantial evidence, these
inferences must be reasonable and logical. Fedorczyk v. Caribbean Cruise Lines, 82 F.3d 69, 75
(3d Cir. 1996). A Court may not submit the issue of causation to the jury “if it would require
guessing or speculation to determine cause.” Smith v. Bell Tel Co. of Pa., 397 Pa. 134, 153 (Pa.
1959) (“We have said many times that the jury may not be permitted to reach its verdict merely
on the basis of speculation or conjecture, but that there must be evidence upon which logically its
conclusion may be based.”) “A mere possibility of causation is not enough.” Id. at 75.
For example, in Wood, the plaintiff and the defendant disagreed as to whether a
dangerous condition existed. Id. at *3. The plaintiff testified in her deposition that she felt
droplets on the floor, and she had a wet spot on her pants following her fall. Id. The court held
that, based solely on the plaintiff’s circumstantial evidence, a fair-minded jury could not
reasonably conclude the floor was dangerously wet before the plaintiff fell. Id. In Wood, no one
saw any wetness on the floor, nor did the surveillance footage reveal any wetness on the floor.
Id. As for the wet spot on the plaintiff’s pants, it was only speculative that it came from the
ground and not the drink she was holding. Id. Therefore, the court held the defendant was
entitled to summary judgment. Id.
Similarly, neither Plaintiff nor his wife observed any wetness, and the photographs and
post-accident reports do not mention any spill or hazardous condition, either. See Aiello Depo. at
28:7-9. Lawrence Moore, Harrah’s Security and Risk Manager, testified no defective, dangerous,
or hazardous condition was found following an inspection of the scene. Moore Depo at 47:1-4.
The post-accident reports and photos do not reveal any liquid, other than Plaintiff’s blood,
tracked down the base of the escalator. Id. Additionally, Plaintiff initially said his shoes made
him fall, and during his deposition, he then said he did not know what caused the fall. Id. at
32:16-24. Plaintiff did not mention wet pants at all in his deposition, and his attorney’s
questioning then only referred to injuries and did not inquire into the mechanism of the fall. See
Aiello Depo. at 72:1-5. His attorney also did not revisit Plaintiff’s clear description given to
Defense counsel. Id. At only one instance did he mention anything regarding feeling wetness,
which was in his answers to Interrogatories 12 and 13, referring to his pants being wet after the
fall and stating “Plaintiff believes he slipped on some type of liquid given that his pants were wet
after the fall.” See Pl’s Resp. Int. 12 and 13. Like Wood, to say this wetness came from an
accumulation of liquid on the floor is speculative. Here, the wetness on Plaintiff’s pants could
have been a variety of substances. There was an abundance of blood photographed in the postaccident report; or, Plaintiff could have spilled a drink during dinner. Hennigan Depo. at 30:1-4;
Aiello Depo. at 37:8-23. Regardless, without more evidence, the inference the floor was wet
because Plaintiff’s pants were wet it is too speculative, and thus insufficient to preclude
Plaintiff has failed to show a genuine dispute as to whether a dangerous condition
existed, but even if he had, Plaintiff has also not produced any evidence Harrah’s had notice of
the condition. Plaintiff and his wife testified that they were unaware of any other complaints or
falls in the same location as Plaintiff’s. Aiello Depo. at 29:8-13. There is no allegation or
evidence that Harrah’s had actual notice of the spill or that Harrah’s created the spill. Therefore,
the issue is whether Plaintiff has presented evidence sufficient for a reasonable jury to conclude
that Harrah’s had constructive notice.
Plaintiff fails to prove constructive notice. Plaintiff alleges Harrah’s spoliated evidence
that would have established not only the existence of a hazardous condition, but also would have
established actual or constructive notice. ECF No. 19 at 14-15. Additionally, Plaintiff argues
Harrah’s failure to properly police and inspect the atrium prevents summary judgment in its
favor. Id. at 13.
Courts rely on a number of factors to determine constructive notice, including: “the
number of persons using the premises, the frequency of such use, the nature of the defect, its
location on the premises, its probable cause, and the opportunity which defendant, as a
reasonably prudent person, had to remedy it.” Hagan v. Caldor Dep’t Stores, Inc, No. 89-7810,
1991 WL 8429, at *4 (E.D. Pa. Jan 28, 1991). Normally, the “evaluation of these factors is
within the province of the jury.” Id. Nonetheless, where the evidence adduced requires the jury to
resort to “conjecture, guess or suspicion,” the determination must be made by the court. Lanni v.
Pa R.R. Co., 88 A.2d 887, 889 (1952).
Constructive notice “requires proof that the condition had been present long enough that,
in the exercise of reasonable care, the defendant should have known of its presence.” Hower v.
Wal-Mart Stores, Inc., No. Civ. A. 08-1736, 2009 WL 1688474, at *3 (E.D. Pa. June 16, 2009).
In Hower, the plaintiff argued the defendant’s failure to make a safety sweep amounted to
constructive notice of a spill, and specifically emphasized that the employees “did not know
when the last time prior to the fall the aisle had been inspected.” Id. at *4. The court disagreed,
and noted the store was busy and with a “good volume” of customers inside at the time of the
accident. Id. at *5. Given the plaintiff slipped in the middle of the aisle, and there was no
evidence of footprints or tracks, the court could only conclude the spill was fresh. Id.
Furthermore, the court held that the defendant’s own internal policies were not equivalent to its
duty of care, especially when those policies offer guests greater protection. Id. More specifically,
lack of evidence that the defendant had inspected the aisle was not proof the defendant did not
inspect it. Id. Finally—and most importantly—the court held the failure to perform a safety
sweep said nothing about how long the spill was present. Id; See also Kujawski v. Wal-Mart
Stores, Inc., No. 06-4120, 2007 WL 2791838, at *3 (E.D. Pa. Sept. 25, 2007) (granting summary
judgment after no evidence was offered as to how the spill happened or how long the spill was
on the floor prior to the accident, and noting the evidence regarding the physical appearance of
the puddle and its surrounding area allows no inference other than that the puddle was fresh).
Here, Plaintiff has provided no evidence that even if there was a spill, it was anything
other than fresh. Plaintiff fell in the atrium—one of the casino’s main arteries—at around 9 p.m.
on a Saturday night. Aiello Depo. at 36:18-20. Like in Hower, where the Wal-Mart was replete
with mid-day shoppers, there was a “high-volume” of customers in and around the atrium at the
time of the fall. Id. Additionally, Plaintiff fell at the base of the only escalator going down.
Aiello Depo. at 24:6-11. Therefore, even if there was spill, given the level of traffic in that area
of the casino on a Saturday night, it is likely it would have been noticed by other patrons and
reported quickly. Also, if there was, for example, a spill caused by another patron, it is
impossible to make any finding as to how long the spill was there since it could have been
caused by any of the many people who passed through the area just prior to Plaintiff and his
wife. Without any evidence in the record at this point, there is no other inference than that this
hypothetical spill was fresh.
Second, Plaintiff incorrectly equates lack of evidence of inspection with proof that the
area was not adequately inspected, and his reliance on Kavanaugh is unpersuasive. Like Hower,
where the court found that although one employee may not have inspected the aisle, it does not
mean no one did. Similarly, just because a security official was not specifically watching the
escalators in the atrium does not mean the area went uninspected. The court in Hower noted that
safety inspections were a team effort; Harrah’s uses a similar system where all Harrah’s
employees must report hazardous conditions. Id; See also Hennigan Depo. at 17:7-10. Thus, just
because a security officer was not specifically in charge of the atrium’s escalators does not mean
the area was unattended. In fact, given that the atrium is the thruway between the parking lot and
the main casino area, it is likely numerous employees—who all have the duty to report hazardous
conditions—passed through the escalator area prior to the accident. To proceed any further
would present a jury with a decision they could only base on speculation. Thus, not only did
Plaintiff fail to provide evidence of the existence of a hazardous condition, but he also failed to
provide evidence that Harrah’s had notice of that condition.
Plaintiff attempts to overcome Harrah’s summary judgment motion by arguing for a
spoliation inference. The record indicates that Harrah’s had working security cameras in the
atrium, and it was common practice to save an hour’s worth of footage prior to any slip and fall.
Shreckengost Depo. at 21:2-8. However, the only surveillance footage preserved showed just a
minute prior to Plaintiff’s fall, and the aftermath. Id. Additionally, Plaintiff avers Harrah’s failed
to properly investigate the incident, and thus robbed Plaintiff of contemporaneous statements of
employees who were in the area at the time of Plaintiff’s fall. Plaintiff charges that he has been
stripped of the opportunity to determine how and when the defect was created and how many—if
any—employees walked by the condition prior to the Plaintiff’s fall. ECF No. 19 at 11-12.
Courts may impose a sanction for destruction of evidence where: (1) the evidence was
within the alleged spoliator’s control; (2) the evidence was relevant to the claims and defenses in
the case; (3) there has been actual suppression or withholding of the evidence; and (4) it was
reasonably foreseeable that the evidence would be discoverable. Bull v. United Parcel Serv., Inc.,
665 F.3d 68, 73 (3d Cir. 2012). The party seeking a spoliation sanction bears the burden of
proving these factors. Malibu Media, LLC v. Doe, No.14-1280, 2015 WL 412855, at *4 (E.D. Pa
Feb 2, 2015). Further, the finding of bad faith is “pivotal to a spoliation determination” and is
decided under the third factor of actual suppression or withholding. Bull, 665 F.3d at 79. Bad
faith may be inferred from circumstantial evidence. E.g., Orion Drilling Co., LLC v. EQT
Production Co., 826 Fed App’x 204, 217 (3d Cir. 2020).
For the Court to even entertain sanctions or some adverse inference due to spoliation,
there must be actual evidence Harrah’s destroyed, suppressed, or withheld evidence from
Plaintiff. See Felix v. GMS, Zallie Holdings, Inc., 827 F. Supp. 2d 430, 442 (E.D. Pa. 2011)
(citing Brewer v. Quaker State Oil Refining Corp., 72 F.3d 326, 334 (3d Cir. 1995) (“It must
appear that there has been an actual suppression or withholding of the evidence. No unfavorable
inference arises when the circumstances indicate that the document or article in question has
been lost or accidentally destroyed, or where the failure to produce it is otherwise properly
A finding of bad faith is pivotal to a spoliation determination. Bull, 665 F.3d at 77.
Ordinary negligence is not sufficient to establish spoliation. First Senior Fin. Grp. LLC v.
Watchdog, No. 12-1247, 2014 WL 1327584, at *7 (E.D. Pa. Apr. 3, 2014). The party asserting
spoliation must prove that evidence was intentionally withheld, altered, or destroyed. Id. Thus,
no unfavorable inference of spoliation arises if the evidence was lost, accidentally destroyed, or
where the failure to produce it is otherwise properly accounted for. Id. In First Senior Financial
Group, the court explained the standard further:
After the Third Circuit’s decision in Bull, courts within this Circuit have sought to
distinguish conduct constituting bad faith from conduct equivalent to mere
accidental destruction or loss of evidence. Typically, the destruction of evidence by
an automated system pursuant to an even-handed policy, such as the re-recording
of videotapes in the usual course of business, does not constitute bad faith. In these
situations, the lack of bad faith stems in part from the fact that the party controlling
the evidence had no reason to believe that it would be required in litigation.
Similarly, imperfect measures to fail to preserve some evidence from destruction
by an automated system do not establish bad faith if active efforts were made to
preserve other evidence.
On the other hand, a “reckless disregard for the consequences of an intentional and
conscious destruction of evidence, previously specially preserved for purposes of
subsequent litigation, at a time when litigation is necessarily foreseeable,” may
constitute bad faith. Additionally, a party’s obfuscation or lying can show that she
is acting in bad faith.
First Senior Fin. Grp. LLC v. Watchdog, No. 12-1247, 2014 WL 1327584, at *7 (E.D. Pa. Apr.
3, 2014). Whether or not litigation is “reasonably foreseeable” is a flexible standard, and courts
exercise discretion in a spoliation inquiry. Harrell v. Pathmark, No. 14-5260, 2015 WL 803076,
at *4 (E.D. Pa. Jan. 26, 2015).
A duty to preserve is not triggered only at the onset of a potential claim or when litigation
is imminent; the obligation to preserve evidence arises when the party has notice that the
evidence may be relevant to future litigation. Id. Courts have found that a party reasonably
should have anticipated litigation from the time it learned of the events giving rise to the
litigation, not only from the time a lawsuit was filed, threatened, or planned. See Bistrian v. Levi,
448 F. Supp. 3d 454, 469 (E.D. Pa. 2020). In spoliation case law, certain kinds of incidents are
viewed as being especially likely to lead to litigation, including slip and fall cases. Courts have
held that because they so predictably lead to a lawsuit, defendants can be expected to anticipate
litigation soon after the event itself. Id. That does not mean the mere fact of a slip-and-fall is
always enough to put the defendants on notice of litigation, but when combined with other
factors, it is often enough to put defendants on notice that litigation was forthcoming. Id. Several
factors affect this determination, such as the seriousness of the injury and the parties’ prior
relationship. Id. The parties conduct after the event can also shed light on whether the defendant
should have anticipated litigation, as a plaintiff’s statements or conduct might put a defendant on
notice that litigation was likely. Id.
In this case, Plaintiff suffered serious injuries resulting from his slip and fall, leaving
Harrah’s in an ambulance and spending the night in the hospital. Aiello Depo. at 30:5-14. On the
other hand, Plaintiff did not commence the civil action until over a year after the accident on
October 8, 2020, initially told Harrah’s security personnel his shoes made him fall, and
frequented the casino roughly fifteen times between October 2019 and February 2020 (after his
fall). Aiello Depo. at 42:4-8. However, given the severity of the injuries, coupled with the notion
that slip and falls often spawn lawsuits, Harrah’s had sufficient notice litigation was likely.
If litigation was foreseeable, then the inquiry hinges on bad faith. Spoliation requires
more than negligence. Mack v. Pilot Travel Centers, LLC. No. 1:14-CV-00090, 2015 WL
9946411 (M.D. Pa. Dec. 22, 2015). In Mack, the defendant had an informal policy of saving
twenty minutes of surveillance footage when an incident occurs, but only saved two fragmented
videos considerably less than twenty minutes. Id. at *2. The court was unpersuaded by the
plaintiff’s argument that the preservation of only some evidence “spoke volumes” regarding the
defendant’s culpable mindset. Id. The footage that was provided, which tracked the plaintiff
through the store and confirmed his slip and fall, undermined the claim of any intentional
spoliation. Id. In Mack, the court held the reason for less than twenty minutes of footage
constituted negligence. Id. Destruction of evidence that occurs as a result of inadvertence, routine
practice, or accident is not spoliation. Bozic v. City of Washington, Pa., 912 F. Supp. 2d 257,
273 (W.D. Pa. 2012). Most importantly, in Mack, the plaintiff never provided testimony from the
individual who actually reviewed and exported the footage as to why only a certain amount of
footage was preserved, such that this Court should infer bad faith on the part of the defendant.
Mack, 2015 WL 9946411 at *4. In Mack, the plaintiff offered no evidence suggesting that the
defendant purposefully chose to omit portions of the video, this leaving only speculation as to
what happened. Id.
Where an establishment fails to preserve footage, despite requests to do so, a court may
find spoliation. See Nixon v. Family Dollar Stores of Pennsylvania, LLC, No. 4:20-CV-00404,
2021 WL 2015188 (M.D. Pa. May 20, 2021). In Nixon, the defendant did not save any
surveillance footage for the entire day of the accident, even though it was put on notice the day
after the plaintiff’s accident to save the footage. Id. at *7. The defendant had clear notice a
lawsuit was coming, and yet allowed the footage to be re-recorded and destroyed. Id. The court
found there was no justification for the store’s failure to preserve the evidence, especially since
the store had a video-retention policy dictating otherwise. Id. Thus, the court found the defendant
acted in bad faith and spoliated evidence. Id.
Here, Harrah’s may have been negligent in failing to preserve the hour’s worth of
footage, but Plaintiff has brought forward no evidence showing or giving rise to a reasonable
inference that Harrah’s acted in bad faith. While it is true that both Moore and Shreckengost
admitted it was standard practice to preserve the hour of footage, and that Dorian Price and
Surveillance Supervisor Shakoor provided a sub-standard post-accident report by apparently not
watching the footage before it was destroyed, this is insufficient. Shreckengost Depo. at 21:2-8.
Plaintiff’s argument is principally that Harrah’s would have known of the hazardous liquid had it
been adhering to its policies and procedures and that had the video been preserved it would show
whether anyone spilled a liquid or created another dangerous condition. See ECF No. 19 at 13.
This argument fails for a few reasons.
First, Harrah’s informal policies do not correspond with its duty of care and actually
provide greater protection to invitees. See Hower v. Wal-Mart Stores, Inc., No. 08-1736, 2009
WL 1688474, at *6 (E.D. Pa. June 16, 2009). A business will not face a penalty for failing to live
up to a heightened, self-imposed duty of care. See id. Unlike Nixon, where the store failed to
provide any footage despite requests from the plaintiff the day after the accident, Harrah’s
provided roughly a minute of footage prior to Plaintiff’s fall and extensive footage after the
accident, even though Plaintiff did not initiate this action until October 2020—over a year after
his fall. This is akin to Mack, where the store had an unofficial policy of preserving footage, and
they negligently failed to satisfy that self-imposed higher standard. Rather than malicious intent,
the tape here was not saved because of “human error” that was not caught by the supervisor.
Shreckengost Depo. at 21:6-7. Moreover, it was not an official, written policy of Harrah’s to
save the hour prior to fall. Id. at 24:7-19. Harrah’s negligently failed to provide an hour’s worth
of footage, but it did provide footage of the atrium for roughly a minute prior to the fall, and
followed Plaintiff until he left the premises. Moore Depo. at 18:5-23. There is a paucity of
evidence the casino actively suppressed or destroyed evidence, especially under the
circumstances here as the Plaintiff reported that his shoes made him fall. Accordingly, the Court
is unpersuaded that the Defendant spoliation evidence and should be precluded from contesting
liability or subject to an adverse inference.
Additionally, Plaintiff did not provide any testimony from Dorian Price, the individual
who was responsible for watching and recording the footage, as to why the full hour was not
preserved, such that this Court could infer bad faith. Rather, the Court is left with speculations.
Thus, a spoliation sanction is inappropriate due to the Harrah’s lack of bad faith.
Because no genuine disputes of material fact exist and Harrah’s is entitled to judgment as
a matter of law, the Court will GRANT Harrah’s Motion for Summary Judgment. An
appropriate order follows.
BY THE COURT:
/s/ Chad F. Kenney
CHAD F. KENNEY, JUDGE
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