Arnold v. Brookshire Grocery Co.
| Decision Date | 06 May 2009 |
| Docket Number | No. 09-44.,09-44. |
| Citation | 10 So.3d 1279 |
| Parties | Aquiline ARNOLD v. BROOKSHIRE GROCERY COMPANY, et al. |
| Court | Court of Appeal of Louisiana — District of US |
Charles J. Foret, Briney & Foret, Lafayette, LA, for Defendant/Appellee, Brookshire Grocery Company.
Michael L. Barras, Galloway Jefcoat, LLP, Lafayette, LA, for Plaintiff/Appellant, Aquiline Arnold.
Court composed of JOHN D. SAUNDERS, MICHAEL G. SULLIVAN, and ELIZABETH A. PICKETT, Judges.
The plaintiff, Aquiline Arnold, appeals a judgment of the trial court dismissing her suit against the defendant, Brookshire Grocery Company (d/b/a Super One Foods and hereinafter referred to as Brookshire's), with prejudice, at her costs. We affirm the judgment of the trial court.
This case arises out of a slip and fall which happened at the Brookshire's store in New Iberia on June 21, 2006. The plaintiff filed suit on June 19, 2007, basing her claim on La.R.S. 9:2800.6 which covers actions causing injury, death, or loss "because of a fall due to a condition existing in or on a merchant's premises." In due course, on January 28, 2007, the defendant filed a motion for summary judgment. A hearing on the defendant's motion was set for March 14, 2008, but upon motion filed by the plaintiff was continued until May 30, 2008. Thereafter, on May 22, 2008, the plaintiff filed a supplemental and amending petition, which for the first time raised the issue of spoliation.
The defendant's motion for summary judgment was heard on May 30, 2008. A judgment sustaining the motion, dismissing the plaintiff's claims under La.R.S. 9:2800.6, was signed June 11, 2008, and a hearing on the claim of spoliation, raised by the plaintiff's supplemental and amending petition, was set for July 23, 2008.
Subsequently, the defendant filed an exception of no cause of action and requested a continuance of the July 23, 2008 hearing until August 28, 2008. The continuance was granted without opposition, and, following the August 28, 2008 hearing, the defendant's exception was sustained and the plaintiff's suit dismissed with prejudice at her costs. The plaintiff appeals.
The plaintiff slipped and fell on a spot of broken egg(s) in an aisle of the defendant's store. There was an employee stocking the end cap of the aisle. He was notified and he called another employee, Maria Romero, to the scene of the accident. The plaintiff alleges that Ms. Romero's action of cleaning up the broken egg(s) on the floor before the Brookshire's manager arrived and photographed the scene constituted spoliation of the evidence. The trial judge found that Ms. Romero's actions "fail[ed] to state a cause of action for spoliation of evidence." We agree.
Spoliation constitutes "a tort action against someone who has impaired the party's ability to institute or prove a civil claim due to negligent or intentional [destruction] of evidence." McCool v. Beauregard Mem'l Hosp., 01-1670, p. 2 (La. App. 3 Cir. 4/3/02), 814 So.2d 116, 118. Thus, in order to state a cause of action in spoliation one must demonstrate two elements: (1) the intentional or negligent destruction of evidence and (2) that the first element was for the purpose of depriving the plaintiff of its use. See Kammerer v. Sewerage and Water Bd. of New Orleans, 93-1232 (La.App. 4 Cir. 3/15/94), 633 So.2d 1357, writ denied, 94-0948 (La.7/1/94), 639 So.2d 1163, citing Williams v. Gen. Motors Corp., 607 So.2d 695 (La.App. 4th Cir. 1992).
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