Marshall v. Target Corporation

Filing 40

ORDER denying 31 Motion for Sanctions Due to Defendants Spoliation of Evidence by Magistrate Judge Scott T. Varholak on 7/19/2018. (jgonz, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 17-cv-00880-WYD-STV
JANE MARSHALL,
Plaintiff,
v.
TARGET CORPORATION,
Defendant.
______________________________________________________________________
ORDER
______________________________________________________________________
Magistrate Judge Scott T. Varholak
This matter is before the Court on Plaintiff’s Motion for Sanctions Due to
Defendant’s Spoliation of Evidence (the “Motion”). [#31] The Motion was referred to
this Court. [#32] This Court has carefully considered the Motion and related briefing,
the case file, and the applicable case law. The parties declined the Court’s invitation for
an evidentiary hearing [see #37], and the Court has determined that oral argument
would not materially assist in the disposition of the Motion. For the following reasons,
the Court DENIES the Motion.
I.

Background Facts
On April 26, 2015, Plaintiff allegedly fell at a Target store in Aurora, Colorado (the

“incident”). [#31-1 at 1] According to Plaintiff, it had been raining outside and she fell
on a wet spot just inside the main entrance, where the carpet transitioned to tile. [Id.]
Initially, Plaintiff did not believe the injury was serious and, as a result, she did not report
the injury to any Target employees and continued shopping. [Id. at 2] The next day,
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however, Plaintiff’s hand was still hurting. [Id.] Plaintiff went to an orthopedic surgeon
and an x-ray revealed that Plaintiff had fractured her humerus. [Id.]
On April 29, 2015, Plaintiff called Target to inform the store of the incident. [#312] The next day, she completed a guest incident report stating that she “slipped and
fell” when “entering the store.” [Id.] Plaintiff listed the cause of the incident as “wet
floor” and stated that she had a broken humerus. [Id.] A Target employee, Elizabeth
Prince (formerly Holmquist) signed the guest incident report. [Id.; #35 at 3]
After receiving the incident report, Ms. Prince began looking for video of the
incident. 1 [#35-1 at 21:9-12] She found a video of the entrance where the incident
occurred. [Id. at 23:10-12] The video showed Plaintiff entering the store, but did not
show her falling. 2 [Id. at 23:13-20] There may also have been additional videos that
could have shown Plaintiff shopping after the fall. [#31-6 at 40:6-10, 55:7-18]
On May 1, 2015, Target notified Sedgwick Company, a third party claims adjuster
that handles Target’s premises liability claims, of Plaintiff’s fall. [#31-3 at 4; #31 at 5]
That same day, Plaintiff spoke with a company representative, reporting that it was
raining on the day of the incident and that water had been tracked onto the floor. [#31-3
at 6] She said that she slipped and fell where the carpet transitions to tile. [Id.] She
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Pursuant to Target’s policies and procedures, upon learning of a guest incident, a
Target employee is directed to: (1) “[p]artner immediately with AP to determine if any
cameras captured the incident and/or incident scene”; (2) “[e]nsure AP secures the 20
minutes before and the 20 minutes after the time of the incident”; and (3) “determine if
secondary video was captured,” among other responsibilities. [#31-4 at 2]
2
Target’s entryway has a single carpet that begins immediately upon a guest’s entry
into the store. [#35-8] After that carpeted area, there is tile flooring. [Id.] A second
carpet may be placed after the first carpet on poor weather days to provide additional
carpet covering. [Id.; see also #31 at 8; #31-8 at 29:10-13] According to Ms. Prince,
the video of the entryway only showed the first carpeted area, and not the tile area or
whether a second carpet had been added on the date of the incident. [#35-1 at 24:1725:20]
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further explained that her left humerus was fractured and that she was “making a claim.”
[Id.]
On May 6, 2015, Tyler Hammer, a representative of Sedgwick Company, called
and left a voicemail for Plaintiff. [#31-3 at 6]

Mr. Hammer also opened a new claim.

[Id. at 7] In his claims notes, Mr. Hammer indicated that he needed to review any
relevant video footage. [Id.] Five days later, Mr. Hammer spoke with Ms. Prince. [Id. at
8-10] Ms. Prince told Mr. Hammer that there was “video of the guest coming in,” but
that the “incident [was] just out of camera coverage.” [Id. at 10]
On May 18, 2015, Mr. Hammer spoke with Plaintiff. [Id.] Plaintiff stated that she
had a fractured humerus and fractured alna, and that surgery was possible. [Id. at 13]
Plaintiff indicated that she thought Target was “a little responsible” and that she would
be filing a claim against Target for medical expenses. [Id. at 14]
On June 4, 2015, Mr. Hammer sent Ms. Prince an email requesting any video
that Target had saved. [Id. at 3] In the email, Mr. Hammer stated that it would “be
helpful to see what the front of the store looks like and how the area was set up for a
rainy day.” [Id.] Ms. Prince responded that the video could not be retrieved because
Target only saves its videos for thirty days.

[Id. at 2]

The video was apparently

overwritten on or around May 26, 2015—approximately 30 days after the incident. [See
#35-2 at 78:19-22, 82:7-13; #35-1 at 36:24-25, 37:1-7; #35-7]
On March 20, 2017, Plaintiff filed the instant action in Arapahoe County District
Court. [#3] Plaintiff’s Complaint brings a single claim for relief pursuant to Colorado’s
premises liability statute, Colo. Rev. Stat. § 13-21-115. [Id. at 3-4] On April 10, 2017,

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Target removed the matter to this Court. [#1] Plaintiff filed the instant Motion on April 6,
2018 [#31], Defendant has responded [#35], and Plaintiff filed a reply [#36].
II.

Analysis
“Destruction of evidence, or spoliation, is a discovery offense.” Gates Rubber

Co. v. Bando Chem. Indus. Ltd., 167 F.R.D. 90, 101 (D. Colo. 1996). As part of their
discovery obligation, “putative litigants have a duty to preserve documents that may be
relevant to pending or imminent litigation.”

Cache La Poudre Feeds, LLC v. Land

O’Lakes, Inc., 244 F.R.D. 614, 620 (D. Colo. 2007). “Once it is established that a
party’s duty to preserve has been triggered, the inquiry into whether a party has
honored its obligation to preserve evidence turns on reasonableness, which must be
considered in the context of whether ‘what was done—or not done—was proportional to
that case and consistent with clearly established applicable standards.’”

Zbylski v.

Douglas Cty. Sch. Dist., 154 F. Supp. 3d 1146, 1164 (D. Colo. 2015) (quoting Rimkus
Consulting Grp., Inc. v. Cammarata, 688 F. Supp. 2d 598, 613 (S.D. Tex. 2010)).
A court may impose sanctions for the destruction or loss of evidence.

See

Cache La Poudre, 244 F.R.D. at 620. “A spoliation sanction is proper where (1) a party
has a duty to preserve evidence because [they] knew, or should have known, that
litigation was imminent, and (2) the adverse party was prejudiced by the destruction of
the evidence.” Burlington N. & Santa Fe Ry. Co. v. Grant, 505 F.3d 1013, 1032 (10th
Cir. 2007).

The two most important factors in determining spoliation sanctions are

culpability of the offending party and actual prejudice to the other party. See Browder v.
City of Albuquerque, 187 F. Supp. 3d 1288, 1297 (D.N.M. 2016); HR Tech., Inc. v.
Imura Int’l U.S.A., Inc., No. 08-2220-JWL, 2010 WL 4792388, at *2 (D. Kan. Nov. 17,

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2010). To obtain an adverse inference instruction, the party claiming prejudice must
also prove bad faith. Turner v. Pub. Serv. Co. of Colo., 563 F.3d 1136, 1149 (10th Cir.
2009); Fed. R. Civ. P. 37(e)(2) (with respect to electronically stored information, court
may give adverse inference instruction “only upon finding that the party acted with the
intent to deprive another party of the information’s use in the litigation”).
A. Whether the Duty to Preserve was Triggered
The first question the Court must answer is whether the duty to preserve was
triggered. In making this decision, the Court must determine whether litigation was
imminent. Undoubtedly, the filing of a lawsuit triggers a duty to preserve. See Cache
La Poudre Feeds, LLC, 244 F.R.D. at 621. But, “the obligation to preserve evidence
may arise even earlier if a party has notice that future litigation is likely.” Id. As a result,
“a party should not be permitted to destroy potential evidence after receiving
unequivocal notice of impending litigation.” Id.

Nonetheless, “the duty to preserve

relevant documents should require more than a mere possibility of litigation.”

Id.

“Ultimately, the court’s decision must be guided by the facts of each case.” Id.
“In determining whether a party’s duty to preserve has been triggered, courts
evaluate facts such as the likelihood that a certain kind of incident will result in litigation;
the knowledge of certain employees about threatened litigation based on their
participation in the dispute; or notification received from a potential adversary.” Zbylski,
154 F. Supp. 3d at 1163. Additionally, “[c]ourts have found the duty to preserve to be
triggered based on an internal investigation into an incident.” Id. Ultimately, “a party’s
duty to preserve arises when it has notice that the [evidence] might be relevant to a
reasonably-defined future litigation.” Id.

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Weighing these factors, the Court concludes that Target had a duty to preserve
the videos showing the entryway. It appears that the videos were overwritten on May
26, 2015, thirty days after the incident.

[See #35-2 at 78:19-22, 82:7-13; #35-1 at

36:24-25, 37:1-7; #35-7] As of that date, Target knew that Plaintiff had fallen in one of
their stores and had broken her humerus in the fall, including due to Plaintiff’s guest
incident report filed on April 30, 2015 [#31-2], Ms. Prince’s efforts to find video of the
incident [#35-1 at 21:9-12], Target’s notification to Sedgwick Company on May 1 of
Plaintiff’s fall [#31-3 at 4; #31 at 5], Plaintiff’s reports of the incident to a Sedgwick
Company representative, and Mr. Hammer’s opening of a claim and communications
with Ms. Prince and Plaintiff [#31-3 at 6-14]. This is the type of incident that a company
could expect to lead to litigation. Moreover, Target knew that Plaintiff had claimed that
she had fallen on a wet spot on the floor of its store, that she held Target at least
partially responsible for her injuries, and that Plaintiff intended to file a “claim” for her
medical expenses.

[See #31-3 at 14 (Plaintiff indicating to Mr. Hammer that she

believed Target to be “a little responsible” and that she would be filing a claim against
Target for medical expenses); see also id. at 6 (Plaintiff’s statement to a Sedgwick
Company representative that she was “making a claim”). Such details were sufficient to
put Target on notice that there would be “a reasonably-defined future litigation.” Zbylski,
154 F. Supp. 3d at 1163; see also Browder, 187 F. Supp. 3d at 1296 (duty to preserve
triggered where plaintiffs’ attorney sent a letter to defendant stating that plaintiffs
“intend[ed] to pursue a claim in regards to the incident at issue”)
Such details were also sufficient to place Target on notice that the video showing
the entryway may be relevant to that reasonably-defined litigation. In particular, the

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video may have shown whether a wet floor or other warning sign had been placed at the
entryway.

Indeed, in his June 4, 2015 email, Mr. Hammer acknowledged that the

entryway video would “be helpful to see what the front of the store looks like and how
the area was set up for a rainy day.”

[#31-3 at 3] Thus, the Court concludes that

Target was on notice prior to the entryway video’s destruction that the entryway video
might be relevant to a reasonably-defined future litigation.

Accordingly, the Court

concludes that Target had a duty to preserve the entryway video.
Similarly, Target was on notice that the videos showing Plaintiff shopping were
relevant to the litigation. Target disputes that Plaintiff fell, let alone that she broke her
humerus during the fall. [See #31-6 at 29:22-24; see also #35 at 1-3] The videos of her
shopping would have shown Plaintiff’s arm and whether she was holding it, or favoring
one arm over the other. Such evidence is relevant to whether Plaintiff fell and, if so, the
severity of her injuries. Accordingly, the Court concludes that Target had a duty to
preserve any videos of Plaintiff shopping on the date of the incident.
B. Actual Prejudice
Having concluded that Defendants had a duty to preserve evidence that was lost
or destroyed, the Court must next determine whether Plaintiff was prejudiced by the loss
of evidence. “Spoliation sanctions are proper when the court determines that a party
had a duty to preserve relevant evidence, and the adverse party was prejudiced by the
destruction of the evidence.” Zbylski, 154 F. Supp. 3d at 1170-71. “The prejudice must
be actual, rather than merely theoretical.” Id. at 1171.
Here, while Plaintiff may have suffered some prejudice by the destruction of the
video, that prejudice is largely speculative.

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Neither party disputes Ms. Prince’s

assertion that the videos did not record the incident. Moreover, Ms. Prince testified that
the entryway video did not depict the area where a second carpet could have been
placed [#35-1 at 24:17-25:20; #35-8], and Plaintiff has not presented any evidence
contradicting that assertion, such as footage from the same video camera on a different
rainy day. 3 As a result, the entryway video would not have shown whether Target had
utilized additional carpeting on the date in question. Moreover, while the entryway video
may have shown the presence of a wet floor warning sign, it would not have
conclusively established the absence of such a sign; had the sign been placed on the
second carpet (if a second carpet was utilized) or at the beginning of the tile flooring, for
example, that sign would have been out of view of the entryway video. [#35-1 at 24:1725:20; #35-8] Thus, even if Target had preserved the video and the video failed to
depict a warning sign, that fact alone would not have established that Target failed to
provide a warning sign on the date in question. 4 Finally, while Plaintiff speculates that
video of her shopping may have shown her favoring her uninjured arm [#31 at 8],
Plaintiff has not presented any evidence that she was indeed favoring that arm after the
fall. As a result, the Court can only speculate as to what the shopping videos would

3

The Court provided the parties an opportunity to request an evidentiary hearing [#37],
and neither party accepted the Court’s offer.
4
Plaintiff also argues that the video could have confirmed the veracity of Target
employee Vanessa Garcia Medina’s deposition testimony that she would walk the
entryway every hour to confirm that the floors were free of moisture accumulation. [#31
at 8] Although Plaintiff argues that such video would be relevant to whether Target took
reasonable care to discover the dangerous condition and protect against it under the
Premises Liability Act, even assuming Ms. Garcia Medina did walk the floor every hour,
significant moisture could still accumulate in the interim period. As a result, the
prejudice resulting from Plaintiff’s loss of the ability to confirm or dispute Ms. Garcia
Medina’s testimony is minimal.
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have shown.

Accordingly, the Court finds that Plaintiff has been only minimally

prejudiced by Target’s failure to preserve the videos.
C. Sanctions
Because the Court finds that the duty to preserve was triggered and that Plaintiff
has suffered some minimal prejudice, the Court must determine what sanctions, if any,
are appropriate. See Zbylski, 154 F. Supp. 3d at 1170-71; Cache La Poudre, 244
F.R.D. at 621. In evaluating the appropriate sanction, the two most important factors
are the culpability of the offending party and actual prejudice to the other party. See
Browder, 187 F. Supp. 3d at 1297; HR Tech., 2010 WL 4792388, at *2. Weighing these
factors, the Court concludes that significant sanctions are not warranted.
First, there has been no evidence that Target intentionally destroyed the videos.
Rather, it appears that Ms. Prince viewed the entryway, determined that it did not depict
the incident, and therefore did not take action to preserve the videos. [See #35-1 at
23:13-20; #35-2 at 79:5-17] As detailed above, Ms. Prince should have realized the
potential import of the videos and taken action to preserve them. Similarly, Mr. Hammer
should have acted sooner to ensure that the videos were not destroyed. But, once
again, while Ms. Prince and Mr. Hammer were negligent in failing to preserve the
videos, Plaintiff has not presented any evidence of intentional misconduct.
Second, as detailed above, Plaintiff’s prejudice has been minimal. While the
videos may have confirmed that Target took actions to warn customers about a wet
floor, the videos would not have confirmed the absence of such a warning. As a result,
Target’s failure to preserve the videos has not significantly impacted Plaintiff’s ability to
prosecute her case.

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Thus, weighing both Target’s culpability and Plaintiff’s prejudice, the Court
concludes that a significant sanction is unwarranted. As a result, the Court declines to
recommend that the district court instruct the jury that it may make any inference it
believes appropriate in light of the spoliation. 5 The Court agrees with Plaintiff, however,
that it may be appropriate to allow Plaintiff to present evidence at trial about the failure
to preserve the videos. See Hatfield v. Wal-Mart Stores, Inc., 335 F. App’x 796, 804
(10th Cir. 2009) (affirming district court’s decision in slip and fall case: (1) allowing
plaintiff to present evidence regarding the unavailability of store surveillance video,
though video from the date in question did not show the actual fall, but (2) refusing to
impose adverse inference or other instruction). But, ultimately, the Court believes that
issues of relevance should be determined by Senior United States District Court Judge
Wiley Y. Daniel, the presiding district court judge, once he has had the opportunity to
hear the other evidence that has been presented. Accordingly, the Court denies without
prejudice Plaintiff’s request to present evidence about Target’s failure to preserve the
videos. Plaintiff may include this evidence in the proposed Final Pretrial Order, and the
parties may raise the relevance issue with Judge Daniel at the Final Pretrial
Conference.

5

The instant case differs significantly from Browder, relied upon by Plaintiff for the
proposed instruction. There, the defendant failed to preserve potentially critical
evidence despite the fact that the plaintiff’s attorney sent a letter stating that the plaintiff
would be pursuing a claim and specifically requested that the defendant preserve the
evidence that was later destroyed. 187 F. Supp. 3d at 1296.
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Thus, for the reasons stated above, it is ORDERED that Plaintiff’s Motion [#31] is
DENIED.
DATED: July 19, 2018

BY THE COURT:
s/Scott T. Varholak
United States Magistrate Judge

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