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Brown v. Sam's West Inc.

United States District Court, D. Nevada

January 26, 2018

KEVIN BROWN, et al., Plaintiffs,
SAM'S WEST INC., et al., Defendants.



         This matter is before the court on Plaintiffs Kevin Brown and Jennifer Brown's Motion for Sanctions due to Spoliation of Evidence (ECF No. 50), filed on July 17, 2017. The court also considered Defendant Sam's West's response (ECF No. 56), filed on July 31, 2017, the Browns' reply (ECF No. 57), filed on August 3, 2017, and Sam's West's surreply (ECF No. 74), filed on October 19, 2017.[1] The court held an evidentiary hearing on the motion on October 23, 2017. (Order (ECF No. 72); Mins. of Proceedings (ECF No. 77).)


         This matter involves a slip-and-fall incident that occurred on May 15, 2015, at a Sam's Club store owned by Sam's West. The incident occurred in the aisle between the cooler and the freezers towards the back of the store. There is no dispute that Kevin Brown slipped on a piece of frozen banana. Nor is there a dispute that no surveillance video of the actual slip and fall existed. The Browns seek sanctions for Sam's West's spoliation of video surveillance from areas of the store nearby the aisle where the slip and fall occurred, and also for Sam's West's failure to preserve the original conditions of the floor, which was resurfaced as part of a store remodel about seven months after the incident. The Browns argue that Sam's West should have collected video of the general area of the incident, which would show whether Sam's West's employees conducted inspections as required by its policies. Additionally, Sam's West had the floor re-surfaced after the incident, and before giving the Browns the opportunity to inspect it, thereby preventing their expert from conducting an inspection of the flooring where the incident occurred.

         The Browns argue they have been prejudiced in conducting the necessary discovery to support their claims based on Sam's West's failure to preserve evidence. As a remedy, the Browns argue Sam's West's answer should be stricken, or in the alternative, the court should give an adverse instruction that had the surveillance video and the condition of the floor been preserved, such evidence would be helpful to Browns' case, or harmful to Sam's West's case. Sam's West responds that it had no duty to preserve video surveillance of areas nearby the slip-and-fall incident, or to provide advance notice that the floors were going to be resurfaced as part of a remodel project.


         An owner or occupier of premises is liable for an injury to its invitee that was caused by an unreasonably dangerous condition on its premises, if the owner had actual or constructive notice of its presence. Sprague v. Lucky Stores, Inc., 849 P.2d 320, 322-23 (Nev. 1993); Asmussen v. New Golden Hotel Co., 392 P.2d 49, 50 (Nev. 1964). “Where a foreign substance on a floor causes a patron to slip and fall, and the business owner or one of its agents caused the substance to be on the floor, liability will lie, as a foreign substance on the floor is usually not consistent with the standard of ordinary care.” Sprague, 849 P.2d at 322. “Where the foreign substance is the result of actions of persons other than the business or its employees, liability will lie only if the business had actual or constructive notice of the condition and failed to remedy it.” Id. Constructive notice exists if the foreign substance was present for such a length of time that the business owner, in the exercise of reasonable diligence, should have discovered and removed it. Zumbusch v. Wal-Mart Stores, Inc., 940 F.Supp.2d 1308, 1314 (D. Or. 2013) (citing Van Den Bron v. Fred Meyer, Inc., 738 P.2d 1011, 1012 (Or. App. 1987)); Adams v. Valley Hope Ass'n, 2012 WL 12903146, *2 (D. Ariz. June 28, 2012) (citing Walker v. Montgomery Ward & Co., 511 P.2d 699, 702 (Ariz. App. 1973)). The injured person's ability to prove that the business owner had actual or constructive notice may well depend on evidence that is substantially, if not exclusively, in the control of the business owner and its agents.

         “Spoliation is the destruction or significant alteration of evidence, or the failure to preserve property for another's use as evidence in pending or reasonably foreseeable litigation.” West v. Goodyear Tire & Rubber Co., 167 F.3d 776, 779 (9th Cir. 1999). There are two sources of authority under which the court can sanction a party for spoliation of evidence-its inherent authority or Federal Rule of Civil Procedure 37. Leon v. IDX Sys. Corp., 464 F.3d 951, 958 (9th Cir. 2006). Regardless of whether it is under Rule 37 or its inherent authority, a federal court applies federal law when addressing issues of spoliation of evidence. See Glover v. BIC Corp., 6 F.3d 1318, 1329 (9th Cir. 1993) (applying federal law when addressing spoliation in diversity litigation). Here, the Browns implicitly request that the court exercise its inherent authority to enter an order to strike the answer or for an adverse inference jury instruction.

         The court has “inherent discretionary power to make appropriate evidentiary rulings in response to the destruction or spoliation of relevant evidence.” Id. Such broad power includes permitting an adverse inference from the spoliation of relevant evidence against the spoliating party. Id. The adverse inference sanction is based on evidentiary and policy rationales that seek to deter a party who has notice of an item's relevance to litigation from destroying it. Akiona v. United States, 938 F.2d 158, 161 (9th Cir. 1991). Therefore, the duty to preserve begins when a party reasonably should have known that the evidence is relevant to anticipated litigation. See In re Napster, 462 F.Supp.2d 1060, 1067 (N.D. Cal. 2006). A finding of bad faith is not a prerequisite for an adverse inference. Glover, 6 F.3d at 1329. A spoliation remedy, however, requires some degree of culpability. In re Napster, 462 F.Supp.2d at 1067. The court need only find that the nonmoving party acted with “conscious disregard” of its obligations. Apple Inc. v. Samsung Elecs. Co., 888 F.Supp.2d 976, 988 (N.D. Cal. 2012).

         Although the Ninth Circuit has approved the use of adverse inferences as sanctions for spoliation of evidence, it has not articulated a precise standard for determining when spoliation sanctions are appropriate. Id. at 989. “Trial courts have widely adopted the Second Circuit's three-part test, which provides that a party seeking an adverse inference instruction based on the destruction of evidence must establish: (1) that the party having control over the evidence had an obligation to preserve it at the time it was destroyed; (2) that the evidence was destroyed with a culpable state of mind; and (3) that the evidence was relevant to the party's claim or defense such that a reasonable trier of fact could find that it would support that claim or defense.” Id. at 989-90 (quotations omitted); see also Leon, 464 F.3d at 959 (stating that “[a] party's destruction of evidence qualifies as willful spoliation if the party has some notice that the documents were potentially relevant to the litigation before they were destroyed.” (quotation omitted)).

         A. NOTICE

         Sam's West does not dispute it was on notice of the slip and fall. It took witness statements, prepared an incident report, received a notice of injury from Brown's attorney within a few days of the incident, and forwarded the correspondence from Brown's attorney to its claims handler. (Mot. (ECF No. 50), Exs. 1, 7-9, 10; Resp. (ECF No. 57), Exs. 1-2.) Therefore, Sam's West had sufficient notice on the date of the incident that litigation was reasonably foreseeable, thereby triggering the duty to preserve relevant evidence.

         B. RELEVANCE

         1.Video ...

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