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Brown v. Albertsons, LLC

United States District Court, D. Nevada

May 10, 2017




         The undersigned conducted a hearing on February 14, 2017, on the Plaintiff's Motion for Sanctions due to Spoliation of Evidence (ECF No. 14). David Tanner appeared on behalf of plaintiff, and Justin Smerber appeared on behalf of defendant. The court has considered the motion, defendant's Response (ECF No. 15), plaintiff's Reply (ECF No. 16), and the arguments of counsel at the hearing.


         The Complaint was filed in state court and removed (ECF No. 1) on August 22, 2016. Plaintiff alleges that she was at an Albertson's store located at 5500 Boulder Highway, Las Vegas, Nevada, on February 1, 2016. Complaint ¶5. While walking down an aisle, she encountered an unknown and unforeseen liquid on the floor causing her to slip and fall. Id. ¶9. The fall caused severe and debilitating injuries. Id. The complaint alleges a single claim for negligence and seeks damages in excess of $10, 000.

         The Petition for Removal (ECF No. 1) indicates that on August 11, 2016, plaintiff served defendant Albertson's with a first supplemental disclosure to her early case conference list of witnesses and documents in which she alleges she sustained medical expenses of $57, 734.11, and had future damages between $250, 000 and $1, 000, 000. On September 19, 2016, the court approved the parties' stipulated proposed discovery plan and scheduling order which established a February 18, 2017 discovery cutoff and other case management deadlines consistent with LR 26-1. The parties requested and received two extensions of the discovery plan and scheduling order deadlines. The current discovery cutoff is July 17, 2017.

         In the current motion, plaintiff seeks an order sanctioning Albertson's for spoliation of evidence. Plaintiff argues that Albertson's either destroyed or failed to preserve relevant evidence in violation of its legal obligations. Albertson's store director conducted an investigation after the slip and fall which consisted of: (1) obtaining a statement from the injured party; (2) preparing an incident report; (3) taking pictures of the area; (4) getting surveillance videos; and (5) communicating with Sedgwick, its third-party claims adjuster. However, plaintiff argues that Albertson's destroyed virtually all evidence of its fault related to this accident.

         Albertson's employees who arrived at the scene took only four photographs which show less than half of aisle 9 where the accident occurred, and none of the spill. Additionally, Albertson's did not preserve the surveillance video, and claims that the video is not available because its system was down. An incident report was prepared, but it was destroyed when it was copied over by a customer incident report in the copying process. Albertson's Rule 30(b)(6) deposition designee testified that the original report is gone and no copy exists. Finally, plaintiff claims that spoliation sanctions are appropriate because correspondence between Albertson's and its third-party administrator/claims adjuster was destroyed. The testimony of Albertson's Rule 30(b)(6) designee was that the prior store director at the time of this incident was terminated, and his emails were not preserved.

         Plaintiff argues that Albertson's was on notice of a potential claim on the date of the slip-and-fall because Ms. Brown stated she was injured and was going to seek medical attention for her injuries. This placed Albertson's on notice of its duty to preserve. Albertson's intentionally failed to preserve vital evidence. Albertson's manager on duty at the time of the incident was deposed in this case and testified that Albertson's knew its action on the evening of the fall was dangerous and employees did not comply with its own safety policies. In essence, the manager admitted that Albertson's knew it was liable for this fall. Thus, Albertson's had every incentive to destroy evidence, “which is the only way it could possibly defend this action at trial.” Plaintiff claims that Albertson's went out of its way to preserve only evidence that would be possibly favorable to it, and that its failure to preserve the items specified in the motion will result in incomplete and spotty evidence at trial. Plaintiff therefore requests that the court sanction Albertson's by striking its “answer as to liability and its comparative negligence affirmative defense” and “issue any other appropriate sanctions.”

         Albertson's opposes the motion arguing that plaintiff's motion contradicts itself. On the one hand plaintiff alleges that defendant's manager admitted at deposition that Albertson's negligence caused plaintiff's fall. On the other hand, plaintiff contends that missing evidence makes it difficult for her to prove her case. Albertson's argues that if its employee admitted that it was negligent at the deposition, then the motion is “moot.” Albertson's also argues that it disclosed the incident report, all pre-litigation, non-privileged correspondence between its adjuster and Albertson's, and made attempts to retrieve the surveillance video. The events of the investigation were memorialized in an incident report that plaintiff completed which was signed by the store manager on duty at the time, John Ryan Ramirez. Mr. Ramirez also filled out a handwritten statement within days of the incident. Additionally, Albertson's third-party claims adjuster, Sedgwick, memorialized all communications it had with Albertson's in its claim notes which were produced to the plaintiff in initial Rule 16.1 disclosures on July 10, 2016, prior to removal.

         Albertson's also points out that photographs were taken of the floor which clearly depict the spill and the immediate area where the plaintiff fell. Plaintiff's counsel deposed defendant's Rule 30(b)(6) designee, Isaac Baca, and showed the witness the photographs requesting that he circle all areas in the photographs where Mr. Baca saw milk in the pictures. The pictures were attached as Exhibit 6 to the transcript. Mr. Ramirez also testified at length about the spill. He testified that the spill was milk that was tracked from the meat department through the back of the store down aisle 9 and went all the way up to the front registers. Mr. Ramirez testified that the spill was so large that other courtesy clerks were cleaning up the mess in other parts of the store. He also admitted that there were slip marks through the milk where the plaintiff fell and there were no warning cones in the area. Additionally, Mr. Ramirez testified about Albertson's policies and procedures regarding cleaning spills.

         Albertson's concedes it has been unable to locate the customer/vendor incident worksheet that was filled out in this case. A blank copy of the form is attached to Exhibit G to the opposition. Counsel for Albertson's argues that all of the information that would have been filled out in the worksheet has been disclosed in other discovery produced or in deposition testimony. With respect to the video surveillance tape, the claims adjuster's notes document the timeline regarding attempts to preserve the surveillance video. On February 2, 2016, at 7:30 a.m., the day after the incident, Sedgwick emailed the store director instructing the store to compile all incident-related information and documents and send it to Sedgwick within 14 days. Copies of the claim notes were produced in discovery and attached as Exhibit C to the opposition.

         On February 10, 2016, the store informed Sedgwick that its video system was down, but that a specialist was coming to the store that day to fix it. On February 16, 2016, the store updated the adjuster on the situation indicating that the video was still down, but there was an outstanding service ticket for the repair. The store informed Sedgwick that the issue was widespread and affected more than one store.

         On February 22, 2016, counsel for plaintiff sent a representation and preservation letter, a copy of which is attached as Exhibit D to the opposition. On March 7, 2016, the store director advised the adjuster that all surveillance video footage prior to March 1, 2016, was lost, but that another specialist was going to try to recover the lost video. The specialist was unable to recover lost surveillance videos prior to March 6, 2016, and the store director so advised Sedgwick on March 15, 2016.

         Albertson's argues that plaintiff misstates the evidence that may be missing and speculates to the relevancy or importance of the evidence. Albertson's maintains the court should deny the motion for sanctions because plaintiff has failed to show it destroyed evidence after it was on notice of potential litigation. Albertson's was first put on notice of the potential of litigation on February 22, 2016, when counsel for plaintiff sent his letter of representation. Plaintiff has not established that Albertson's negligently or recklessly destroyed any evidence after February 22, 2016, and has therefore failed to meet her initial burden of showing that defendant destroyed evidence after the potential for litigation became probable.

         Plaintiff also misrepresents what evidence is missing. Photographs were taken of the floor which clearly show the spill on the floor and the immediate area where plaintiff fell. Mr. Ramirez testified at his deposition to the breadth of the spill and that the spilled milk was “tracked all the way back from my Meat Department, through the back of the store, down aisle 9, and that it went all the way back up to the front to, like, the registers.” Albertson's diligently and reasonably attempted to retrieve the surveillance video, but was unable to do so. It could not preserve a surveillance video that did not exist. The incident report was disclosed in initial disclosures and was not destroyed. The former store director's emails were not retained but correspondence between the adjuster and Albertson's is documented in the adjuster's claim notes that log and summarize every pre-litigation, non-privileged communication between Sedgwick and Albertson's.

         Finally, Albertson's asserts it is simply not true that missing or incomplete evidence will lead to spotty and incomplete information at trial. All information in the customer/vendor incident call worksheet, surveillance video, photographs that were not taken, and correspondence that was destroyed can be found in the extensive information that has been disclosed in this matter. Plaintiff's motion provides no justification for requesting the drastic sanction of striking its answer or precluding a comparative negligence affirmative defense. Information that would have been on the customer/vendor incident call center worksheet has otherwise been disclosed in discovery. Albertson's cannot produce a surveillance video that never existed because of a system failure, and the plaintiff is simply wrong that Albertson's destroyed all pre-litigation correspondence between it and its claims adjuster. Defendant therefore requests that the court deny the motion in its entirety.

         Plaintiff replies that Albertson's destroyed or failed to preserve evidence vital to this case which should result in significant sanctions. The incident report contained vital information that was intentionally destroyed and no long exists. It was copied over and the original destroyed which shows intent to destroy and thwart plaintiff's ability to conduct discovery in this case.

         Although Albertson's opposition argues that litigation was not reasonably foreseeable until it received a letter from plaintiff's attorney 3 weeks after the fall, plaintiff argues that Albertson's was on sufficient notice of a potential claim on the date of the slip and fall because plaintiff indicated she was injured and intended to seek medical attention.

         The court should impose sanctions that level the “evidentiary playing field” to put the prejudiced party in the same position she would have been if the evidence had not been destroyed. An adverse inference sanction is one such available sanction. The court may also impose evidentiary sanctions allowing evidence of spoliation, excluding evidence or witnesses, or deeming certain matters admitted. Plaintiff argues that litigation-ending sanctions are appropriate when a party has engaged in deliberate actions to deceive and undermine the judicial process. In this case, plaintiff is asking the court to sanction Albertson's by striking its answers as to liability, and by not allowing it to present evidence of comparative fault. Although some courts may characterize these as terminating sanctions, plaintiff argues they could also be characterized as an evidentiary sanction. The sanctions requested are not terminating sanctions because “it does not ask for litigation to end; rather, it is an evidentiary sanction that asks that certain defenses not be allowed and certain evidence not be presented.”

         Plaintiff is requesting sanctions based on the extensive and wide-ranging evidence that has been destroyed and not preserved, because Albertson's store director testified that Albertson's was at fault for this fall, and based on the wide-ranging evidence that has been destroyed or not preserved, “it is clear that Albertson's has gone out of its way to affect plaintiff's ability to present her case at trial.” The court should therefore “strike Albertson's answer as to liability and not allow evidence of corporation's fault” or alternatively, impose an evidentiary sanction that Albertson's cannot present any evidence contradicting the ...

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