United States District Court, D. Nevada
HOFFMAN, JR. UNITED STATES MAGISTRATE JUDGE.
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. The court held an evidentiary hearing on
the motion on October 23, 2017. (Order (ECF No. 72); Mins. of
Proceedings (ECF No. 77).)
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.
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
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.
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.
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.
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.”
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.