Spoliation no reason to overturn summary judgment for grocery store in slip & fall premises liability lawsuit

First Court of Appeals, in opinion by Justice Elsa Alcala, rejects spoliation of evidence as ground to preclude summary judgment for the defendant in premises liability lawsuit. Defendant store did not preserve complete video recording of the slip & fall incident upon which the lawsuit was based. While acknowledging that the tape recording would be relevant, the Court opines that absence of the footage did not harm Defendant.

Clark v. Randalls Food (Tex.App.- Houston [1st Dist.] Feb. 25, 2010)(Alcala) (trial court's refusal to find spoliation by Defendant and take-nothing judgment affirmed)

FROM THE OPINION BY JUSTICE ELSA ALCALA

Applicable Law Concerning Spoliation

The act of spoliation refers to destruction of evidence relevant to a case. Buckeye Ret. Co. v. Bank of Am., N.A., 239 S.W.3d 394, 401 (Tex. App.--Dallas 2007, no pet.). Trial courts have broad discretion in taking measures to address spoliation of evidence that include "measures ranging from a jury instruction on the spoliation presumption to, in the most egregious cases, death penalty sanctions." Trevino v. Ortega, 969 S.W.2d 950, 953 (Tex. 1998). "As with any discovery abuse or evidentiary issue, there is no one remedy that is appropriate for every incidence of spoliation; the trial court must respond appropriately based upon the particular facts of each individual case." Id.

The inquiry as to whether a spoliation sanction or presumption is justified requires a court to consider (1) whether there was a duty to preserve evidence, (2) whether the alleged spoliator breached that duty; and (3) whether the spoliation prejudiced the non-spoliator's ability to present its case or defense. Adobe Land Corp., 236 S.W.3d at 357; Offshore Pipelines, Inc. v. Schooley, 984 S.W.2d 654, 666 (Tex. App.--Houston [1st Dist.] 1998, no pet.).

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Prejudice

The final step of our inquiry focuses on whether Randalls's spoliation prejudiced Clark's ability to present his case. See Schooley, 984 S.W.2d at 666 (citing Trevino, 969 S.W.2d at 954-55 (Baker, J., concurring); Adobe Land Corp., 236 S.W.3d at 360. "[T]he spoliating party is [ ] free to attempt to show that . . . no prejudice" resulted from the negligently destroyed evidence." Trevino, 969 S.W.2d at 958 (Baker, J., concurring). In making this determination, we look to a variety of circumstances such as (a) the harmful effect of the missing evidence, and (b) the availability of other evidence to take the place of the missing information. Adobe Land Corp., 236 S.W.3d at 360; Schooley, 984 S.W.2d at 667.

a. Harmful Effect of Missing Evidence

Having already determined the footage not preserved by Randalls was relevant to the premises liability lawsuit, we must address how the failure to preserve it has prejudiced Clark's lawsuit. In determining whether a party was harmed by spoliated evidence, we consider "whether the destroyed evidence supports key issues in the case." Trevino, 969 S.W.2d at 958 (Baker, J., concurring).

The trial court could reasonably have determined that the missing videotape footage was not evidence that supports key issues in the case because the key issue here is whether there was liquid on the floor, and the camera was unable to capture whether there was liquid on the floor and when it may have gotten there. For example, if the tape showed an employee performing a walk-though one hour before the event, that would not reveal whether the employee saw the liquid because the tape of Clark's fall does not show any visible liquid. Similarly, if the tape showed no employee was seen performing a walk-through one hour before the event, a walk-though could still have occurred at that area with the employee standing nearby but outside of the camera range. The trial court could have reasonably determined that because the counter blocks the camera's visibility of the floor where Clark fell, the camera would not have captured the liquid falling on the floor. Although the tape is relevant, the trial court could have reasonably determined it had limited value in the case because the tape is unclear, it does not show any liquid on the part of the floor that can be seen on the tape, and due to the angle of the camera and the height of the counter, it does not show the part of the floor where Clark fell.

As noted above, the primary significance of this tape is that it would show whether another person at this location slipped prior to Clark at the same location. But nothing in our record suggests that another person slipped there before Clark. The pharmacist, the other people working at the pharmacy counter, and the store manager do not mention any other complaints about people slipping there. The trial court could reasonably have determined that the tape would not show anyone else slipping at the location before Clark because the other evidence in the case fails to suggest that occurred.

b. Availability of Other Evidence

As Randalls points out, there was evidence other than the tape to show the condition of the floor. The pharmacist and Clark could each testify about the condition of the floor when Clark fell. The store manager described the walk-through procedures to check the condition of the floor in the hour preceding the fall.
Even if the tape had been produced and the walk through was not visible on the tape, the walk though could have been conducted outside of camera range, given that the stationary camera captured only a limited range. As noted above, the primary significance of this tape is that it would show whether another person at this location slipped prior to Clark at the same location, but the tape is not the only evidence that would show that, and the people working in that area did not mention any complaints about people slipping there. The trial court, therefore, could have reasonably determined the unavailable footage was cumulative of other competent evidence that Clark could use in place of the destroyed evidence. See Trevino, 969 S.W.2d at 958 (Baker, J., concurring).

The trial court could have reasonably determined Randalls was not negligent in its failure to preserve more of the tape of the events preceding the fall. Importantly, Clark never asked Randalls to preserve the tape until after the tapes had been destroyed pursuant to Randalls policy. Randalls, sua sponte, preserved the tape in the anticipation of litigation by Clark. Randalls had to independently surmise how much of the footage Clark would want, without the benefit of any instructions or request from Clark.

We conclude that based on the arguments and evidence presented, the trial court could have reasonably determined the videotaped footage would not show whether liquid was on the floor, how long it was on the floor, whether the walk through was done, and when it was done. Based on the arguments and evidence presented in this case, we hold the trial court did not abuse its discretion by finding no prejudice resulted from Randalls's failure to preserve the footage of events preceding the fall. See, e.g., Ordonez v. M.W. McCurdy & Co., 984 S.W.2d 264, 274 n.13 (Tex. App.--Houston [1st Dist.] 1998, no pet.) (discretion not abused in denying spoliation instruction where evidence showed log books were disposed of pursuant to company policy and missing data not shown to be harmful).

We hold the trial court did not abuse its discretion in refusing to grant a spoliation finding. Because the challenge to the spoliation finding is the sole ground presented in this appeal to challenge the summary judgment ruling, we affirm the trial court's take-nothing summary judgment. See Adobe Land Corp., 236 S.W.3d at 357 (citing Aguirre, 2 S.W.3d at 457); Sowell, 263 S.W.3d at 38.

We overrule Clark's sole issue.

Clark v. Randalls Food (Tex.App.- Houston [1st Dist.] Feb. 25, 2010)(Alcala)
(premises liability suit, spoilation of evidence claim rejected; defendant did not preserve complete video
recording of slip & fall incident in store)
AFFIRM TRIAL COURT JUDGMENT: Opinion by Justice Elsa Alcala
01-08-00732-CV Ralph Clark v. Randalls Food
Appeal from 157th District Court of Harris County
Trial Court Judge: Hon. Randy Wilson