Bilesky v. Shopko Stores Operating Co., No. DA 14–0201.

• Docket Nº: No. DA 14–0201.
• Citation: 2014 MT 300, 338 P.3d 76, 377 Mont. 58
• Case Date: November 14, 2014
• Court: United States State Supreme Court of Montana

377 Mont. 58
338 P.3d 76
2014 MT 300

Gloria BILESKY, Plaintiff and Appellant
v.
SHOPKO STORES OPERATING CO., LLC, Defendant and Appellee.

No. DA 14–0201.

Supreme Court of Montana.

Submitted on Briefs Oct. 21, 2014.
Decided Nov. 14, 2014.

338 P.3d 78

For Appellant: Stephanie C. Kucera, Buxbuam, Daue & Fitzpatrick, PLLC; Missoula, Montana.

For Appellee: W. Adam Duerk, Dylan McFarland, Milodragovich, Dale & Steinbrenner, P.C.; Missoula, Montana.

Opinion

Justice JAMES JEREMIAH SHEA delivered the Opinion of the Court.

377 Mont. 59

¶ 1 Gloria Bilesky appeals from the order of the Eleventh Judicial District Court, Flathead County, denying her motion to present to the jury factual statements Appellee made in a written brief to the District Court.

¶ 2 The issue on appeal is whether factual statements Appellee made in a brief were judicial admissions, and thus should have been presented to the jury as uncontested facts.

PROCEDURAL AND FACTUAL BACKGROUND

¶ 3 On January 30, 2011, Appellant Gloria Bilesky entered Appellee Shopko Stores Operating Co.'s (Shopko) Kalispell store and fell. Bilesky left the store without reporting the incident. The next day, Bilesky called Shopko and reported the incident to Shopko's manager, Michael Beard. After speaking with Bilesky, Beard reviewed video from the store's surveillance cameras with the employee in charge of loss prevention, Jonathan Kempff. Knowing that the surveillance system only retained footage for two to five weeks, after which it would be automatically overwritten, Beard instructed Kempff to copy footage showing Bilesky's fall to a DVD for preservation. Kempff recorded footage to a DVD and sent it to the claims adjuster, Gallagher Bassett Services (Gallagher Bassett).

377 Mont. 60

¶ 4 Bilesky retained counsel to represent her regarding the fall. Bilesky's attorney requested a copy of the video footage from Gallagher Bassett on February 11, 2011, but never received it. Bilesky's attorney continued to request the footage from Gallagher Bassett over the next few months, but Gallagher Bassett refused to provide any information regarding the claim without a court order.

¶ 5 Bilesky filed suit November 3, 2011, alleging Shopko failed to maintain its premises in a reasonably safe condition, which caused Bilesky's fall and injury. In February 2012, Bilesky sent her first set of discovery requests to Shopko, in which she requested all photos, videos, or other material

338 P.3d 79

depicting the January 30, 2011 fall. Shopko responded: “No photographs were taken and no video or audio recordings or other data retained.” In July 2012, Shopko's attorney wrote to Bilesky's attorney to explain that the footage of Bilesky's fall had been accidentally recorded over. Subsequent investigation by Bilesky revealed that Kempff had recorded footage to DVD; however, the footage was from the day after Bilesky's fall, and from the wrong cameras.

¶ 6 Bilesky filed a motion for sanctions based on Shopko's spoliation of the video footage. In her brief, Bilesky argued that destruction of the video unfairly disadvantaged her because the video would have given objective evidence of highly probative facts. Bilesky then listed which facts she believed the video would have shown:

• no maintenance had been done for an extended period prior to Gloria's fall,

• the caution, wet floor signs were not out,

• the carpets were saturated with water,

• no employee had even checked the area for at least 35 minutes,

• Gloria's pants were visibly wet,

• she wiped her wet hands on her clothes,

• she fell forward, hard, landing on her hands and knees,

• she needed assistance getting up,

• she got up slowly and was in visible pain/discomfort, and

• her gait was altered after falling.

Bilesky requested that the court sanction Shopko either by granting default judgment, or by giving a negative inference jury instruction and precluding Shopko from raising comparative negligence as a defense.

¶ 7 Shopko responded to Bilesky's motion (Response Brief), arguing that the motion should be denied in its entirety because the accidental spoliation was not an abuse of discovery, and Shopko should not be sanctioned in the absence of an abuse of discovery. In its Response

377 Mont. 61

Brief, Shopko argued that the loss of the video resulted in no unfair advantage to Shopko:

Even if this court is inclined to rule otherwise, the loss of the video has resulted in no prejudice to Plaintiff or unfair advantage to Shopko. In fact, if anything, the loss of the video creates more prejudice for Shopko than Plaintiff.

Shopko then reinforced its argument that there was no unfair advantage by pointing out that it agreed with most of Bilesky's contentions about what the video would have shown, stating:

Furthermore, the Parties substantially agree on what the video would have shown. Plaintiff sets out in her brief what the video would have shown:

• Gloria's pants were visibly wet;

• She wiped her wet hands on her clothes, she fell forward, hard, landing on her hands and knees;

• She needed assistance getting up, she got up slowly and was in visible pain/discomfort; and

• Her gait was altered after falling.

Defendant will not disagree with these points. Eyewitness testimony and company records show what occurred on the day of Plaintiff's fall.

Shopko then noted it disagreed with Bilesky's other contentions about what the video showed, stating:

However, several other points Plaintiff claims the video would have shown is [sic] inaccurate based on eyewitness accounts. Those points are:

• The caution wet floor signs were not out;

• The carpets were saturated with water;

• No employee had even checked the area for at least 35 minutes; and

• No maintenance had been done for an extended period prior to Gloria's fall.

These points remain in dispute.

¶ 8 Based on Shopko's representations in its Response Brief that it agreed with certain of Bilesky's contentions regarding the contents of the video, Bilesky requested in her trial brief that those facts about which Shopko stated it “will not disagree” be read to the jury. Bilesky's request pertained only to those facts that preceded Shopko's statement, “Defendant will not disagree with these points.” Her request did not include

338 P.3d 80

any of the facts about which Shopko had stated, “These points remain in dispute.” In an ensuing email between counsel for the parties, Shopko objected to Bilesky's request. Bilesky supplemented

377 Mont. 62

her trial brief in order to address Shopko's objection, arguing Shopko's statements in its Response Brief were judicial admissions.

¶ 9 At trial, the District Court orally denied Bilesky's request that the statements in Shopko's Response Brief be read to the jury, holding the statements were not judicial admissions. Later in the trial, the District Court allowed Shopko to present testimony contradicting the statements and limited Bilesky's cross examination of witnesses regarding the statements. Bilesky appeals the District Court's determination that Shopko's statements were not judicial admissions, and the resulting denial of her request to introduce the statements into evidence.

STANDARD OF REVIEW

¶ 10 Whether a statement constitutes a judicial admission depends upon the circumstances of each case. Weaver v. State, 2013 MT 247, ¶ 19, 371 Mont. 476, 310 P.3d 495 (citing Kohne v. Yost, 250 Mont. 109, 113, 818 P.2d 360, 362 (1991) ). Whether a statement is one of fact or law, for the purpose of determining if the statement should be considered a judicial admission, is a question of law we review for correctness. Weaver, ¶ 19 (citing Stevens v. Novartis Pharms. Corp., 2010 MT 282, ¶ 75, 358 Mont. 474, 247 P.3d 244 ). A district court's determination of whether a statement constitutes a judicial admission is reviewed for an abuse of discretion. Weaver, ¶ 19. The district court's discretion in this regard is not unlimited, however. See Cox v. Myllymaki, 231 Mont. 320, 322, 752 P.2d 1093, 1094 (1988) (trial courts' discretion is not unlimited).

DISCU...