On December 21, 2021, the Maryland Court of Appeals, Maryland’s highest appellate court, upheld the Maryland Court of Special Appeals’ complete reversal of a $400,000.00 jury verdict and judgment entered against one of Franklin & Prokopik’s retail clients in 2019. The case involved a customer who sued a grocery store alleging that she was struck while shopping by a stocking cart pushed by a vendor who was at the store stocking merchandise. The customer claimed that the vendor should be treated as the grocery store’s employee. The customer’s counsel, who deployed the “Reptile Theory” in opening and closing arguments, also argued that because the business had no security footage of the incident, the business must have spoliated/destroyed evidence. No evidence was offered of the existence of any pertinent video, let alone its destruction at trial. Instead, the store owner offered testimony that the store’s surveillance system did not capture the incident at issue. Over challenges raised by the retailer, the trial court allowed the jury to decide whether the vendor was an employee of the store and provided jury instruction related to spoliation of evidence. The jury found, as noted above, in favor of the customer at trial. On appeal, The Maryland Court of Special Appeals, Maryland’s intermediate appellate court, reversed the jury’s verdict and ordered that a defense judgment be entered in favor of the store. The Maryland Court of Appeals upheld that decision. Firm Principal Steve Marshall tried the jury trial and briefed and argued the successful appeals before both the Maryland Court of Special Appeals and Maryland Court of Appeals. He was joined on the brief by fellow firm Principal David A. Skomba and Associate Miranda D. Russell. 

After reviewing the facts of the case, The Court of Appeals agreed there was insufficient evidence for the jury to conclude that the store owner could be vicariously liable for the acts or omissions of an employee of a vendor. Even though the court found that the retailer had exercised some general control over the vendor’s employee, that control did not rise to the level of specific control necessary for holding the retail client liable for the vendor’s actions. The Court of Appeals acknowledged the retailers general right to order work stopped, inspect progress, make suggestions or recommendations, and to direct alterations and deviations, but held that those actions were not sufficient for permitting an inference that the retail client maintained sufficient control over the vendor such that an employee of the vendor would be considered an employee of the store. 

The Court of Appeals also held, agreeing with the Court of Special Appeals, that the jury verdict had to be reversed because the trial court gave a spoliation of evidence instruction despite there being no evidence that video ever existed or was destroyed. The Court of Appeals added clarity to Maryland law by holding that that there must be some indication that allegedly-destroyed evidence actually existed before a spoliation instruction can be given to a jury. The Court of Appeals explained this by noting that the “purpose of the instruction is to permit the jury to draw inferences about missing evidence, not to require the jury to speculate as to whether the evidence existed in the first place.” Because there was no evidence that the allegedly-destroyed evidence ever existed in the first place, the Court of Appeals found that the instruction given to the jury was prejudicial and grounds for the reversal of the verdict.   

 Finally, the Court of Appeals left the lower appellate court’s analysis of the impropriety of the “reptile theory” undisturbed. The theory, often employed by plaintiffs’ counsel, encourages the jurors to view a store as the insurer of a customer’s safety while on its premises. As noted by the lower appellate court, the theory invites jurors to disregard their oaths, to become non-objective viewers of the evidence, or to go outside that evidence to bear on the issues of damages; these purely subjective considerations are improper in Maryland. The Court of Special Appeals’ reported decision on that issue remains “good law” and will continue to serve as a basis for blocking the Plaintiffs’ bar from improperly deploying the tactic at trial. 

 This case is a significant and precedential decision that will provide clear guidance to trial courts moving forward when dealing with cases involving the actions of vendors and their employees while in a retail establishment. It also serves to guard against completely fabricated claims invented by plaintiffs that the absence of video surveillance of an incident equates to some act of destruction of evidence. The law is now clear that before a trial court can grant a spoliation instruction, the trial court must first find that there was evidence that actually existed and which was destroyed or not properly preserved.

 The reported case is Karen Webb v. Giant of Maryland, LLC (No. 12, September Term, 2021). 

The full decision can be read here: https://mdcourts.gov/data/opinions/coa/2021/12a21.pdf