Brookshire Bros., Ltd. v. Aldridge

• Decision Date: 03 July 2014
• Docket Number: No. 10–0846.,10–0846.
• Citation: 57 Tex. Sup. Ct. J. 947,438 S.W.3d 9
• Parties: BROOKSHIRE BROTHERS, LTD., Petitioner, v. Jerry ALDRIDGE, Respondent.
• Court: Texas Supreme Court

438 S.W.3d 9

57 Tex. Sup. Ct. J. 947

BROOKSHIRE BROTHERS, LTD., Petitioner,

v.Jerry ALDRIDGE, Respondent.

No. 10–0846.

Supreme Court of Texas.

July 3, 2014.

Brock C. Akers, Phillips ‘Akers' Womac, Houston, TX, for Amicus Curiae Kroger Texas LP.

Diana L. Faust, Cooper & Scully, P.C., Dallas, TX, for Amicus Curiae Texas Association of Defense Counsel.

Allison Haver Gabbert, Bush & Ramirez, L.L.C., Houston, TX, for Amicus Curiae Texas Retailers Association.

Krystal Elaine Garcia Riley, Zeleskey Law Firm PLLC, Robert T. Cain Jr., Alderman & Cain PLLC, Scott C. Skelton, Skelton Slusher Barnhill Watkin Wells PLLC, Lufkin, TX, for Petitioner Brookshire Brothers, Ltd.

Darrin M. Walker, Law Office of Darrin Walker, Kingwood TX, George Chandler, Michael Kirk Mathis, Chandler Mathis & Zivley PC, Lufkin, TX, for Respondent Jerry Aldridge.

Justice LEHRMANN delivered the opinion of the Court, in which Chief Justice HECHT, Justice GREEN, Justice JOHNSON, Justice WILLETT, and Justice BOYD joined.

A fundamental tenet of our legal system is that each and every trial is decided on the merits of the lawsuit being tried. After all, reaching the correct verdict is the goal of a fair and impartial judiciary. However, when the spoliation of evidence is at issue, this goal is hampered in conflicting ways. First, as is the case when evidence is lost or destroyed for any reason, spoliation can deprive the factfinder of relevant evidence, which can in turn negatively impact the fairness of the trial. Trial courts therefore must have wide discretion in remedying such conduct and in imposing sanctions to deter it. However, the imposition of a severe spoliation sanction, such as a spoliation jury instruction, can shift the focus of the case from the merits of the lawsuit to the improper conduct that was allegedly committed by one of the parties during the course of the litigation process. The problem is magnified when evidence regarding the spoliating conduct is presented to a jury. Like the spoliating conduct itself, this shift can unfairly skew a jury verdict, resulting in a judgment that is based not on the facts of the case, but on the conduct of the parties during or in anticipation of litigation.

Modern technology has added another layer of complexity to these competing concerns. Due to the exponential increase in the volume of electronic data being generated and stored, maintaining the balance between the significant interest in preserving relevant evidence and the burdens associated with doing so has become increasingly difficult.

Today we enunciate with greater clarity the standards governing whether an act of spoliation has occurred and the parameters of a trial court's discretion to impose a remedy upon a finding of spoliation, including submission of a spoliation instruction to the jury. We first hold that a spoliation analysis involves a two-step judicial process: (1) the trial court must determine, as a question of law, whether a party spoliated evidence, and (2) if spoliation occurred, the court must assess an appropriate remedy. To conclude that a party spoliated evidence, the court must find that (1) the spoliating party had a duty to reasonably preserve evidence, and (2) the party intentionally or negligently breached that duty by failing to do so. Spoliation findings—and their related sanctions—are to be determined by the trial judge, outside the presence of the jury, in order to avoid unfairly prejudicing the jury by the presentation of evidence that is unrelated to the facts underlying the lawsuit. Accordingly, evidence bearing directly upon whether a party has spoliated evidence is not to be presented to the jury except insofar as it relates to the substance of the lawsuit. Upon a finding of spoliation, the trial court has broad discretion to impose a remedy that, as with any discovery sanction, must be proportionate; that is, it must relate directly to the conduct giving rise to the sanction and may not be excessive. Key considerations in imposing a remedy are the level of culpability of the spoliating party and the degree of prejudice, if any, suffered by the nonspoliating party.

While the spectrum of remedies that may be imposed range from an award of attorney's fees to the dismissal of the lawsuit, the harsh remedy of a spoliation instruction is warranted only when the trial court finds that the spoliating party acted with the specific intent of concealing discoverable evidence, and that a less severe remedy would be insufficient to reduce the prejudice caused by the spoliation. This intent requirement is congruent with the presumption underlying a spoliation instruction—that the evidence would have hurt the wrongdoer. A failure to preserve evidence with a negligent mental state may only underlie a spoliation instruction in the rare situation in which a nonspoliating party has been irreparably deprived of any meaningful ability to present a claim or defense.

In the underlying slip-and-fall premises-liability case, we are asked to determine whether the trial court erred in charging the jury with a spoliation instruction when a premises owner retained the requested portion of surveillance video footage of the plaintiff's fall, but allowed additional footage to be automatically erased. Applying the standard enunciated today, we hold that imposition of the severe sanction of a spoliation instruction was an abuse of discretion. We need not address the propriety of a particular lesser sanction because none was requested or imposed. We further hold that the trial court erred in admitting evidence of the circumstances of the spoliating conduct. Because these errors were not harmless, we reverse the court of appeals' judgment and remand the case for a new trial in accordance with this opinion.

I. Background

On September 2, 2004, Jerry Aldridge slipped and fell near a display table at a Brookshire Brothers grocery store. At the time of the fall, Aldridge did not tell store employees that he was injured, and the store did not investigate the fall or complete an incident report. However, about an hour-and-a-half after leaving the store, Aldridge went to the emergency room because of pain. On September 7, Aldridge returned to the store and reported his injuries. Jon Tyler, a store manager trainee, prepared an incident report based on Aldridge's statements and the recollections of the assistant manager who was on duty at the time of Aldridge's fall. The incident report stated that “Aldridge slipped on grease that had leaked out of a container by the ‘Grab N Go.’ ” The Grab–N–Go, which featured rotisserie chickens that were cooked and packaged in the store's deli, was located approximately fifteen feet from the area of the fall.

Aldridge's fall was captured by a surveillance camera mounted near the check-out counters. Because of the camera's placement, the floor where Aldridge fell was in the background and was obscured by a display table, which was covered with a cloth that extended to the floor. At the time of the fall, the cameras recorded surveillance video in a continuous loop that, after approximately thirty days, recorded over prior events. After Aldridge reported his injuries to Brookshire Brothers, Robert Gilmer, Brookshire Brothers' Vice President of Human Resources and Risk Management, decided to retain and copy approximately eight minutes of the video, starting just before Aldridge entered the store and concluding shortly after his fall.

Aldridge learned that Brookshire Brothers possessed video footage of the incident and, on September 13, asked the claims department for a copy so he could see his fall. Gilmer testified that he instructed the claims department not to provide the tape to Aldridge, as Gilmer believed it would be improper. The claims department wrote Aldridge a letter on September 29 stating that there was only one copy of the video at that time and that it therefore could not provide him with a copy. The camera presumably recorded over the September 2 footage by early October.

Brookshire Brothers initially paid Aldridge's medical expenses,¹ but ceased paying by June 2005, when Gilmer wrote Aldridge a letter stating that he had reviewed the video and determined that Brookshire Brothers was going to deny responsibility. In August 2005, Aldridge's attorney sent Brookshire Brothers a letter requesting approximately two-and-a-half hours of additional footage from the store cameras. Brookshire Brothers was unable to comply with that request because the footage had been recorded over almost a year earlier.

Aldridge sued Brookshire Brothers, claiming injuries from a slip and fall under a premises-liability theory. To recover in a slip-and-fall case, a plaintiff must prove, inter alia, that the defendant had actual or constructive knowledge of a dangerous condition on the premises such as a slippery substance on the floor, Keetch v. Kroger Co., 845 S.W.2d 262, 264 (Tex.1992), which may be accomplished with a showing that “(1) the defendant placed the substance on the floor, (2) the defendant actually knew that the substance was on the floor, or (3) it is more likely than not that the condition existed long enough to give the premises owner a reasonable opportunity to discover it,” Wal–Mart Stores, Inc. v. Reece, 81 S.W.3d 812, 814 (Tex.2002). Aldridge argued in the trial court that Brookshire Brothers' failure to preserve additional video footage amounted to spoliation of evidence that would have been helpful to the key issue of whether the spill was on the floor long enough to give Brookshire Brothers a reasonable opportunity to discover it. Aldridge accordingly moved for a spoliation jury instruction.

The trial court allowed the jury to hear evidence bearing on whether Brookshire Brothers spoliated the video, submitted a spoliation instruction to the jury, and permitted the jury to decide whether spoliation occurred during its deliberations on the merits of the lawsuit. The principal witness...