Flipping the Script- Maryland Court of Special Appeals Rejects Reptile Theory and Overreaching Spoliation Instructions


By: Joshua Ferguson

Maryland Court of Special Appeals discussed the emerging Reptile Theory approach favored by plaintiffs’ attorneys. Reptile Theory approach encourages jurors to favor personal safety and the protection of family and community above the law. Courts have previously ruled against similar tactics, such as the Golden Rule, as these arguments invite jurors to disregard their oaths and place themselves in the shoes of the victim taking on a non-objective view of the evidence and law. This focus on solely subjective considerations is improper. Typically, counsel will encourage jurors to act as guardians of the community and punish corporate entities for perceived wrongdoings or solely because an accident occurred on a property, which is improper. In this matter, Plaintiff’s counsel made comments in both opening and closing arguments which could be understood as encouraging the jurors to make the grocery store/property owner the insurer of its customers’ safety while on the premises, despite the trial court already ruling the premises itself did not cause plaintiff’s alleged injuries. The Court of Special Appeals was unable to fully review this matter, as it was not properly preserved during trial. However, the explanation and reference to similar precedent provides insight into the Court’s leaning and sets the stage for future matters to be decided definitively as to Reptile Theory approach.

The Court reversed this matter based upon the grocery store’s lack of vicarious liability owed to the Plaintiff through an independent contractor stocking products at the store, however, the Court noted it would have also reversed based upon the spoilation instruction provided by the trial. The trial court gave a spoliation instruction to the jury, but did not have a proper basis to do so. Plaintiff failed to demonstrate security camera footage of her fall actually existed and was not preserved or otherwise destroyed. The evidence provided by Plaintiff and stressed to the jury by Plaintiff’s counsel was speculative. Cameras were in place at the store, an incident report was created and Plaintiff sent a preservation letter following the incident, but none of the property owners’ employees saw the incident captured on video and there was no evidence presented the incident was ever caught on camera. Despite this, Plaintiff’s counsel encouraged the jury to that video footage almost always exists and it would likely be consistent with Plaintiff’s account. The Court ruled the jury was invited and permitted to engage in speculation surrounding the concealment and destruction of a piece of evidence that was never proven to exist in the first place. A trial court must now determine whether a plaintiff has proven the evidence actually existed before offering a spoliation instruction to the jury.

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