Texas Supreme Court clarifies standards governing sanctions for destruction of evidence

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by John Chapman

A recent ruling issued by the Texas state Supreme Court examines trial standards regarding the appropriate remedy for the destruction of evidence in a slip-and-fall lawsuit. The case involved a man whose injury at a Brookshire Brothers store was captured by the store’s security camera on a videotape that was later partially erased.

Jerry Aldridge slipped and fell near a display table at a Brookshire Brothers grocery store on September 2, 2004. The fall was captured by a store surveillance camera mounted near the check-out counters. At the time, the store’s cameras recorded surveillance video in a continuous loop that, after approximately thirty days, recorded over prior events.

Aldridge reported his injuries to Brookshire Brothers, and Robert Gilmer, the store’s Vice President of Human Resources and Risk Management, decided to retain and copy approximately eight minutes of the video, starting just before Aldridge entered the store and concluding shortly after his fall. On September 13, Aldridge asked the claims department for a copy so he could see his fall. However, Gilmer instructed the claims department not to provide the tape to Aldridge. The claims department thus wrote Aldridge a letter on September 29 stating that there was only one copy of the video at that time and that it therefore could not provide him with a copy. The store’s camera then recorded over the September 2 footage by early October.

Almost a year after the fall, Aldridge’s attorney sent Brookshire Brothers a letter requesting approximately two-and-a-half hours of footage from the store cameras. Brookshire Brothers was unable to comply with that request because the footage had been recorded over almost a year earlier.

Aldridge argued in the trial court that Brookshire Brothers’ failure to preserve additional video footage amounted to spoliation of evidence that was relevant to the key issue of whether the spill was on the floor long enough to give Brookshire Brothers a reasonable opportunity to discover it. Aldridge accordingly moved for a spoliation jury instruction. The trial court allowed the jury to hear evidence bearing on whether Brookshire Brothers spoliated the video, submitted a spoliation instruction to the jury, and permitted the jury to decide whether spoliation occurred during its deliberations on the merits of the lawsuit.

The jury determined that Brookshire Brothers’ negligence proximately caused Aldridge’s fall and awarded Aldridge $1,063,664.99 in damages. The Texas Supreme Court has now reversed and remanded the case for a new trial. Brookshire Bros., Ltd. v. Aldridge, No. 10–0846 (Tex. July 3, 2014). The court used the case to announce standards governing whether an act of spoliation has occurred and the parameters of a trial court’s discretion to impose a remedy upon a finding of spoliation, including submission of a spoliation instruction to the jury.

Texas Supreme Court ruling on evidence spoliation

When evidence is lost or destroyed for any reason, spoliation can deprive a jury of relevant evidence, which can in turn negatively impact the fairness of the trial. The Texas Supreme reiterated that trial courts must have wide discretion in remedying such conduct and in imposing sanctions to deter it. However, the court stated that a severe sanction, such as a spoliation jury instruction, can shift the focus of the case from the merits of the lawsuit to the improper conduct that was allegedly committed by one of the parties during the course of the litigation process.

In Brookshire Bros., the court held that a spoliation analysis involves a two-step judicial process: (1) the trial court must determine, as a question of law, whether a party spoliated evidence, and (2) if spoliation occurred, the court must assess an appropriate remedy. To conclude that a party spoliated evidence, the court must find that (1) the spoliating party had a duty to reasonably preserve evidence, and (2) the party intentionally or negligently breached that duty by failing to do so. A duty to preserve evidence arises when a party knows or reasonably should know that there is a substantial chance that a claim will be filed and that evidence in its possession or control will be material and relevant to that claim. A “substantial chance of litigation” arises when “litigation is more than merely an abstract possibility or unwarranted fear.” If a party possesses a duty to preserve evidence, it breaches that duty by failing to exercise reasonable care to do so, i.e., a breach may be either intentional or negligent.

The court held that these spoliation findings—and their related sanctions—are to be determined by the trial judge, outside the presence of the jury. The court held that evidence bearing directly upon whether a party has spoliated evidence is not to be presented to the jury except insofar as it relates to the substance of the lawsuit.

Upon a finding of spoliation, the trial court has broad discretion to impose a remedy. However, the sanction imposed must relate directly to the conduct giving rise to the sanction and may not be excessive. In determining a sanction, the trial court should consider the level of culpability of the spoliating party and the degree of prejudice, if any, suffered by the nonspoliating party.

The Brookshire Bros. court also held that the remedy of a spoliation instruction is “harsh” and thus “warranted only when the trial court finds that the spoliating party acted with the specific intent of concealing discoverable evidence, and that a less severe remedy would be insufficient to reduce the prejudice caused by the spoliation.” The court allowed one exception: a failure to preserve evidence with a negligent mental state may underlie a spoliation instruction in the rare situation in which a nonspoliating party has been irreparably deprived of any meaningful ability to present a claim or defense.

In the slip-and-fall case brought by Aldridge, the question presented was whether the trial court erred in charging the jury with a spoliation instruction when Brookshire Bothers retained the requested portion of surveillance video footage of the plaintiff’s fall, but allowed additional footage to be automatically erased. The court held that imposition of the severe sanction of a spoliation instruction was an abuse of discretion.

According to the Supreme Court, there was no evidence that Brookshire Brothers intentionally concealed or destroyed relevant evidence. The court apparently based this finding largely on the self-serving testimony of the store’s Risk Manager that he had not anticipated a lawsuit. The Supreme Court also noted that Aldridge only requested footage of “the fall” itself shortly after the incident and did not request additional footage until almost a year later.

The Supreme Court additionally found that any negligent failure by operator of grocery store to preserve additional surveillance footage did not irreparably deprive Aldridge of any meaningful ability to present his slip-and-fall claim. Aldridge was able to present to the jury the video of the fall itself as well as video showing the area several minutes before the fall. He was also able to present the store’s incident report confirming its conclusion that Aldridge had slipped in grease that leaked out of container located near area of fall. Finally, Aldridge himself testified at length about circumstances surrounding his fall. Because it found that the trial court abused its discretion in submitting a spoliation instruction, the court reversed and remanded the case to the trial court for a new.

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* Michael Heygood, James Craig Orr, Jr. and Eric Pearson are all Board Certified in Personal Injury Trial Law — Texas Board of Legal Specialization.

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