Marmaduke v. CBL & Assocs. Mgmt., Inc., ED 104150

• Court: Court of Appeal of Missouri (US)
• Writing for the Court: James M. Dowd, Presiding Judge
• Citation: 521 S.W.3d 257
• Parties: Sandra M. MARMADUKE, Plaintiff/Respondent, v. CBL & ASSOCIATES MANAGEMENT, INC. and ERMC III Property Management Company, LLC, Defendants/Appellants.
• Docket Number: No. ED 104150,ED 104150
• Decision Date: 06 June 2017

521 S.W.3d 257

Sandra M. MARMADUKE, Plaintiff/Respondent,
v.
CBL & ASSOCIATES MANAGEMENT, INC. and ERMC III Property Management Company, LLC, Defendants/Appellants.

No. ED 104150

Missouri Court of Appeals, Eastern District, DIVISION FOUR.

Filed: June 6, 2017

FOR APPELLANT: Robert L. Nussbaumer, 800 Market Street, Suite 350, St. Louis, Missouri 63101.

FOR RESPONDENT: Mark Bishop, P.O. Box 740, Hillsboro, Missouri 63050.

OPINION

James M. Dowd, Presiding Judge

Sandra M. Marmaduke slipped and fell in the common area of the South County Mall ("Mall") located in St. Louis County. Marmaduke brought a premises liability lawsuit against the Mall owner, CBL & Associates Management, Inc. ("CBL"), and the company that CBL hired for housekeeping, maintenance, and security services at the Mall, ERMC III Property Management Company, LLC ("ERMC III") (collectively "Appellants"). A jury found Appellants 90% at fault and Marmaduke 10% at fault for the fall and assessed Marmaduke's damages at $90,000. The court reduced the damages by the assessed percentage of Marmaduke's comparative fault and entered judgment in the amount of $81,000 plus court costs.

Appellants raise six points of error on this appeal: (1) that Marmaduke failed to prove that Appellants had actual or constructive knowledge of the dangerous condition; (2) that the trial court erred by allowing Marmaduke, who had alleged that Appellants spoliated relevant evidence in the form of maintenance dispatch logs and videotape of Marmaduke's fall, to present evidence of Appellants' usual practice of maintaining dispatch logs and their use of video cameras at the Mall; (3) that the trial court erred by denying Appellants' objections to Marmaduke's closing argument that inferred that Appellants had spoliated evidence; (4) that the jury's assessment of

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10% fault to Marmaduke was against the weight of the evidence; (5) that the trial court erred by instructing the jury that it could consider the Appellants together as one party for purposes of liability; and (6) that the trial court erred by allowing Marmaduke to present evidence of the medical treatment and charges related to her knee and hip replacement surgeries because there was no expert medical testimony connecting that treatment to Marmaduke's fall. For the reasons that follow, we affirm.

Factual and Procedural Background

In August 2009, Marmaduke and her granddaughter were walking through the common area of the Mall when Marmaduke slipped and fell on cheese sauce that had apparently been spilled on the floor, though the culprit was never identified. The Mall security supervisor, James McNeil, responded to the area of Marmaduke's fall, took pictures of Marmaduke and the scene of the fall, and prepared an incident report. About two weeks later, Marmaduke's attorney sent written notice of her claim to Mall officials.

In April 2013, Marmaduke filed suit against Appellants. Marmaduke sent Appellants formal discovery requests seeking production of any videotape footage taken on the day of Marmaduke's fall of the common area where the fall took place. Marmaduke also requested production of any maintenance dispatch logs pertaining to the spilled cheese and to Marmaduke's fall. Appellants denied the existence of any videotape or dispatch log relating to Marmaduke's fall.

In response to Marmaduke's request for admissions, Appellants also denied that any videotape or dispatch log relating to Marmaduke's fall had been created, but indicated that if a dispatch log had existed, it was destroyed by a water main break that occurred at the Mall in May 2011. Moreover, Appellants denied having access to a video surveillance system that had the capability of recording Marmaduke's fall, and denied destroying any videotape.

Marmaduke's attorney then took the depositions of two of Appellants' designated corporate representatives and of security supervisor McNeil. The depositions revealed that contrary to Appellants' written discovery responses, Appellants had the capacity to create dispatch logs and video recordings on the day of Marmaduke's fall and video recordings were made on the day of Marmaduke's fall. In addition, and again contrary to Appellants' written discovery responses that no dispatch log had been generated in connection with Marmaduke's fall, the depositions called into question whether such a dispatch log had in fact been created.

As a result of these revelations, Marmaduke filed a motion for sanctions seeking an adverse evidentiary inference against Appellants alleging that Appellants spoliated surveillance videotape of the area of Marmaduke's fall and the dispatch log relating to her fall. Specifically, Marmaduke wanted to be able to tell the jury that it "may draw an adverse inference to the effect that, had the video recording been maintained it would show the cheese spill on the floor for some period of time prior to Mrs. Marmaduke's fall, the fall [itself], the response of the [Appellants'] employees, and [Marmaduke's] actions before and after the fall." Further, Marmaduke requested the court to bar Appellants from making any argument or presenting any evidence that Appellants were not aware of the cheese spill prior to Marmaduke's fall. The court denied Marmaduke's motion for sanctions.

For their part, Appellants filed a motion in limine seeking to preclude Marmaduke from presenting any evidence at trial regarding the circumstances of the disappearance

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of the dispatch log and videotape relating to Marmaduke's fall. The court denied Appellants' motion in limine, ruling that while Marmaduke was not entitled to an adverse inference, she could question witnesses on the subject of Appellants' usual practice of maintaining dispatch logs and the use of video cameras related to incidents like Marmaduke's fall.

At trial, regarding the fall itself, the jury heard testimony from Marmaduke and her granddaughter, and the jury was also read portions of McNeil's deposition testimony. Significantly, Marmaduke testified that McNeil told her that he was aware of the cheese spill prior to her fall but had not yet had time to clean it up.

As to Appellants' practice of maintaining dispatch logs and their use of video cameras, the jury heard deposition testimony from Appellants' corporate representatives. Specifically, the security director for the Mall testified that the normal policy is for a dispatch log to be created any time a maintenance call comes in and that they generally keep video recordings for thirty days unless they are notified of an incident. If they are notified of an incident, they would review the video and save it indefinitely if it has captured an incident. The Mali's security director also testified that Appellants had the capacity to create dispatch logs and video on the day of Marmaduke's fall, and that there was currently a video camera in the common area where Marmaduke fell.

Corporate representative Zachary Morris testified that dispatch logs are created when someone is staffing the cameras in the Mall; that he was sure video recordings were made on the day of Marmaduke's fall, that Appellants first became aware of Marmaduke's injury on the day of the fall, and that Appellants took no action to find out if a dispatch log existed or to preserve any video recordings after receiving the letter from Marmaduke's lawyer.

Kevin Whirley, the director of operations at the Mall, testified that there were fifty-eight video cameras in the Mall and that there was a water main break at the Mall in May 2011 that would have destroyed any dispatch log related to Marmaduke's fall.

The jury also heard deposition testimony from McNeil that there were cameras in the area where Marmaduke fell. McNeil testified that the video image was displayed on screens at the dispatcher's desk where the video was recorded. McNeil testified that he did not review any video of Marmaduke's fall because that was not a part of his job. He testified that there would be a dispatch log for Marmaduke's fall. McNeil testified that he filled out a report documenting Marmaduke's fall for liability reasons and because they kept track of everything that happened at the Mall.

The court allowed Marmaduke to read to the jury Appellants' contradicting discovery responses in which Appellants represented that there was no dispatch log or video of Marmaduke's fall. Marmaduke also read to the jury Appellants' answers to Marmaduke's request for admissions in which Appellants admitted that they received notice of Marmaduke's claim from her attorney on or about August 28, 2009, denied that a dispatch log was created on the day of Marmaduke's fall, and denied having access to a video surveillance system that had the capability of recording the common area of Marmaduke's fall.

In closing argument, Marmaduke asserted that Appellants knew about the cheese spill before Marmaduke's fall because McNeil told Marmaduke he was aware of it but had not yet had time to clean it up. In addition, Marmaduke argued that Appellants

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had security personnel who monitored the video screens and would have seen it. Marmaduke also argued that Appellants lied about not having evidence of a...