dissenting.
Although the majority has correctly determined the trial court erred in submitting the spoliation instruction, I believe the majority has erred in its harm analysis. I therefore dissent.
Even assuming the spoliation instruction was wrongfully submitted, Wal-Mart has failed to show that the instruction caused or likely caused the rendition of an improper verdict. See Tex.R.App. P. 44.1(a)(1). Contrary to the majority’s conclusion that “[t]he instruction essentially required the jury to consider Wal-Mart’s failure to produce the pictures as probative evidence of its liability,” the instruction merely set forth a rebuttable presumption. As briefly, but correctly, noted by Middleton’s counsel during closing argument, the jury was to presume the missing photographs were unfavorable to Wal-Mart only if Wal-Mart failed to produce evidence about the hole in the floor. Wal-Mart did produce evidence about why the photographs were not introduced (they were sent to Wal-Mart’s headquarters and at the time of trial were inexplicably missing), and it produced evidence about the hole in the floor. Regardless, from both party’s accounts, the jury learned that something was wrong with the floor. Based on the evidence presented at trial, the jury could have reasonably: (a) believed Wal-Mart’s explanation regarding the absence of the pictures; (b) determined that Wal-Mart’s evidence rebutted any spoliation presumption; and (e) concluded that Middleton’s evidence regarding the condition of the floor outweighed Wal-Mart’s evidence. In any event, the jury could reasonably have determined that Wal-Mart had rebutted the spoliation presumption. There is absolutely nothing in this record to support the majority’s holding that the spoliation instruction was “unduly confusing and misleading_”
The majority concludes that submission of the spoliation instruction effectively asked the jury to rule on a legal question — whether the spoliation presumption had been rebutted. While this may be the effect of the erroneous submission of the instruction, it is not evidence of harm. Under the record before us, we cannot conclude that harm occurred.
The conflicting testimony regarding the depth of the hole and whether a metal object was protruding from the hole was for the jury to resolve. The jury had sufficient evidence before it to conclude either that the hole did or did not constitute a negligent condition for which Wal-Mart was liable. The jury decided that Wal-Mart was seventy per cent negligent, and we should not disturb their finding. Accordingly, I dissent.