Affirmed and Majority Opinion and Dissenting Opinion filed May 11, 2021.
In The
Fourteenth Court of Appeals
NO. 14-19-00335-CV
CRYSTAL GREGG, Appellant
V.
WALGREEN CO., Appellee
On Appeal from the County Civil Court at Law No. 2
Harris County, Texas
Trial Court Cause No. 1109623
DISSENTING OPINION
I dissent because the trial court abused its discretion by impliedly denying
the alleged spoliation of evidence and, in turn, granting appellee Walgreen Co.’s
no-evidence motion for summary judgment.
Denial of Spoliation of Evidence Was an Abuse of Discretion
Spoliation of Evidence
In determining whether a spoliation presumption is justified, the court
considers the following elements: (1) whether the spoliating party had a duty to
preserve evidence, (2) whether the alleged spoliator breached that duty by failing
to do so, and (3) whether the spoliation prejudiced the non-spoliator’s ability to
present its case or defense. See Clark v. Randalls Food, 317 S.W.3d 351, 356
(Tex. App.—Houston [1st Dist.] 2010, pet. denied); see also Brookshire Bros., Ltd.
v. Aldridge, 438 S.W.3d 9, 14 (Tex. 2014); Miner Dederick Constr., LLP v. Gulf
Chem. & Metallurgical Corp., 403 S.W.3d 451, 465 (Tex. App.—Houston [1st
Dist.] 2013, pet. denied).
A party must preserve what it knows, or reasonably should know, is relevant
to the action, is reasonably calculated to lead to the discovery of admissible
evidence, is reasonably likely to be requested during discovery, or is the subject of
a pending discovery sanction. This duty is triggered when the party knows or
reasonably should know that there is a substantial chance a claim will be filed, and
the evidence is relevant and material. Clark, 317 S.W.3d at 357.
The Duty to Preserve Evidence
Esmeralda Calzoncinth (“Calzoncinth”), the store manager, testified in her
deposition that immediately after appellant Crystal Gregg’s fall, she called the
store’s insurance carrier to report the claim, and spoke with Krystal Sedgwick
(“Sedgwick”). Calzoncinth made a report to Sedgwick, and then, within the hour,
as part of the claims process, copied the portion of the videotape showing
appellant’s entry into the store and her subsequent fall. Calzoncinth additionally
testified that appellant returned to the store a few days later and, at appellant’s
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request, was provided the claim number. Appellant asked for and was given a
wrist brace by Calzoncinth immediately after her fall because appellant
complained her wrist was hurting. The incident occurred on March 6, 2017. On
May 17, 2017, counsel for appellant sent a letter to Sedgwick, informing the carrier
of the claim, and requesting that “Walgreens [sic] immediately take appropriate
steps to preserve any documentary or physical evidence related to the accident,
including but not limited to any store surveillance videotape which captured some
or all of the incident in question.” (emphasis added). The record supports the duty
of Walgreen’s to preserve the videotape both of the incident, and prior to the
incident.
Breach of the Duty to Preserve
Calzoncinth admitted in her deposition that preservation of store videos on
the day of the incident was limited. Calzoncinth, despite being fully apprised of
Gregg’s claim, only preserved Gregg’s entry into the store, seventeen seconds
before Gregg’s fall, and a period after Gregg’s fall. Calzoncinth acknowledged
there were sixteen separate camera angles. Finding Gregg appeared on four of the
videotapes, she only preserved a brief section of the videotape from one of the
cameras that showed Gregg’s fall and the seventeen seconds preceding the fall.
Calzoncinth admitted that the two-hour period prior to the fall could have been
retained on multiple CDs, but she did not do this. She further admitted that even a
month after Gregg’s fall, additional videotape footage was available, but not
preserved. Calzoncinth’s testimony further indicates that the store “machine”
holds three months of video footage. After three months, however, old videos are
taped over and lost, unless preserved. This is what happened in this case. Despite
Gregg putting Walgreen Co. on notice and despite her counsel requesting that such
information be preserved, it was not. Because Walgreen Co. was on notice of the
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claim on the date of the incident or within a few days of the fall, the duty to
preserve the videotape arose well before the three month retention period.
Prejudice to Gregg’s Ability to Present Her Case
The elements of a premises liability case are:
1. The owner had actual or constructive knowledge of some condition
on the premises;
2. The condition posed an unreasonable risk of harm;
3. The owner did not exercise reasonable care to reduce or eliminate
the risk of harm; and
4. The owner’s failure to use such care proximately caused the
plaintiff’s injuries
Pipkin v. Kroger Tex., L.P., 383 S.W.3d 655, 670 (Tex. App.—Houston [14th
Dist.] 2012, pet. denied) (citing LMB, Ltd. v. Moreno, 201 S.W.3d 686, 688
(Tex.2006) (per curiam); Wal–Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934, 936
(Tex. 1998)); see Keetch v. Kroger Co., 845 S.W.2d 262, 264 (Tex. 1992).
Without temporal evidence, there is no basis upon which the fact finder can
reasonably assess the opportunity the premises owner had to discover the
dangerous condition. Clark, 317 S.W.3d at 357. Because constructive knowledge
is a necessary element of proof to establish liability, the videotape footage of the
one to two hours preceding Gregg’s fall should have been preserved. Walgreen
Co. has offered no justification for its failure to preserve the store videotape(s) for
the one to two hours prior to the incident, which could show whether liquid or
water was spilled on the floor, if the floor had been recently mopped, or if someone
else had slipped or fallen at the same location prior to Gregg’s fall.
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In her deposition, Calzoncinth testifed that although she and the cashier
visually inspected the floor and did not see any water, she did not know how much
time had elapsed since the incident and their visual inspection, and could not
remember how many people had walked through the area prior to their inspection.
Neither employee touched the floor.
Prejudice to Appellant
In determining whether Gregg was prejudiced in her ability to present her
case, we review the various circumstances, including the harmful effect of the
missing evidence and the availability of other evidence to take the place of the
missing information. Clark, 317 S.W.3d at 359.
The key issues in the case are whether there was water on the floor prior to
appellant’s fall, and whether Walgreen Co. had constructive knowledge of such a
condition.
Because we cannot determine when the store manager and cashier made a
visual inspection of the floor, and Gregg testified in her deposition that she did not
look at the floor after the incident, there is no available evidence other than the
missing videotape footage to determine if water was on the floor prior to the fall,
and for what period of time, if any. Based on the record before us, we also cannot
determine whether there was water on the floor after Gregg’s fall.
“In resolving evidentiary matters, a trial court does not abuse its discretion
‘if some evidence reasonably supports the court's ruling.’” Abbott v. Anti-
Defamation League Austin, Sw., & Texoma Regions, 610 S.W.3d 911, 916 (Tex.
2020) (quoting Henry v. Cox, 520 S.W.3d 28, 34 (Tex. 2017)). A trial court,
however, has no “discretion” to incorrectly analyze or apply the law. Id.; Walker
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v. Packer, 827 S.W.2d 833, 840 (Tex. 1992) (noting “a clear failure by the trial
court to analyze or apply the law correctly will constitute an abuse of discretion”).
“It is a fundamental tenet of our legal system that trials should be decided on
the merits, but when one party destroys evidence or permits evidence to be
destroyed, this can make fair presentation of the merits difficult.” Johnson v. Nat’l
Oilwell Varco, LP, 574 S.W.3d 1, 12 (Tex. App.—Houston [14th Dist.] 2018, no
pet.) (citing Aldridge, 438 S.W.3d at 16). In the case at issue, the requisities of
spoliation were met, and the effect of the trial’s court’s ruling prevents Gregg, as
the party seeking affirmative relief, from presenting proof of an essential element
of her claim in response to Walgreen Co.’s no-evidence motion for summary
judgment, based on an unexplained spoliation of evidence. Therefore, the implied
denial of the spoliation of evidence finding was an abuse of discretion.
For these reasons, I respectfully disagree with the majority opinion. Because
the trial court abused its discretion in impliedly denying the alleged spoliation of
evidence without reference to guiding principles, the judgment should be reversed
and the cause remanded for further proceedings. See Miner Dederick Constr.,
LLP, 403 S.W 3d at 465.
/s/ Margaret “Meg” Poissant
Justice
Panel consists of Justices Zimmerer, Poissant, and Wilson (Wilson, J., majority).
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