Martino v. Wal-Mart Stores, Inc.

• Decision Date: 29 January 2003
• Docket Number: No. 4D01-2693.,4D01-2693.
• Citation: 835 So.2d 1251
• Parties: Ronna MARTINO and Raymond Martino, her husband, Appellants, v. WAL-MART STORES, INC., an Arkansas corporation, Appellee.
• Court: Florida District Court of Appeals

835 So.2d 1251

Ronna MARTINO and Raymond Martino, her husband, Appellants, v. WAL-MART STORES, INC., an Arkansas corporation, Appellee.

No. 4D01-2693.

District Court of Appeal of Florida, Fourth District.

January 29, 2003.

Philip M. Burlington of Caruso, Burlington, Bohn & Compiani, P.A., and Steven W. Halvorson of Schuler & Halvorson, P.A., West Palm Beach, for appellants.

Brent F. Bradley of Kinsey, Troxel, Johnson & Walborsky, P.A., and Jeffrey P. Gill of Vernis & Bowling of Northwest Florida, P.A., Pensacola, for appellee.

STEVENSON, J.

While shopping at a Wal-Mart store, Ronna Martino was allegedly injured when her shopping cart collapsed. This appeal stems from the entry of a directed verdict in favor of Wal-Mart Stores, Inc., on the Martinos' negligence claims and dismissal of the Martinos' spoliation of evidence claim. We reverse the directed verdict on the negligence claims, but affirm the dismissal of the spoliation of evidence claim.

The Proceedings Below

Ronna and Raymond Martino filed suit against Wal-Mart Stores, Inc., alleging that Ronna Martino was injured on March 1, 1997, while at a Wal-Mart on State Road 7 in Royal Palm Beach. According to the complaint, Mrs. Martino was in the check-out line and a cashier asked her to lift up a bag of water softener salt so that the cashier could scan the price code. Mrs. Martino placed the bag of salt on top of the shopping cart, but the cart collapsed, injuring her hand. Initially, the Martinos claimed only that Wal-Mart was negligent in its inspection and maintenance of the store's shopping carts (the "negligent maintenance" theory) and in failing to properly train store employees regarding appropriate procedures for scanning and customer handling of heavy items (the "negligent mode of operation" theory). When Wal-Mart could produce neither the shopping cart nor a security video that may have recorded the accident, the Martinos added a claim against Wal-Mart for spoliation of evidence.

The Dismissal of the Spoliation Claim

In their second amended complaint, the Martinos attempted to state a distinct cause of action for spoliation of evidence (count III) predicated upon allegations that Wal-Mart's loss of and/or failure to preserve the shopping cart and video tape impaired the Martinos' ability to prevail in the negligence claims stated in count I. Prior to trial, Wal-Mart sought dismissal of the spoliation claim, arguing that one of the elements of a cause of action for spoliation of evidence is a legal or contractual duty to preserve the evidence and that Wal-Mart owed no such duty to the Martinos. The trial court granted Wal-Mart's motion and dismissed the spoliation of evidence claim.

The spoliation of evidence count of the complaint alleged that: (1) on the same day that Mrs. Martino was injured, she informed Wal-Mart's assistant manager of the accident and that an incident report was prepared; (2) she requested that the manager retrieve and preserve the security video that may have recorded the incident; (3) when Mrs. Martino returned to the store after receiving medical treatment, she observed the cart in the parking lot where she had left it and advised the assistant manager of this fact; and (4) just two days after the incident, Wal-Mart's risk management service took her statement. The Martinos contend that these facts were sufficient to put Wal-Mart on notice that litigation was likely and that such notice created a duty to preserve the items.

This district first recognized a cause of action for spoliation of evidence in St. Mary's Hospital, Inc. v. Brinson, 685 So.2d 33 (Fla. 4th DCA 1996)(on rehearing). There, during surgery, a child received an increased amount of anesthesia, suffered cardiac arrest, and, ultimately, died. The child's parents brought a negligence action against the hospital, the surgeon, and the surgeon's professional association. The plaintiffs reached a settlement with the surgeon and the surgeon's professional association, leaving only the negligence claim against St. Mary's. During discovery, it was learned that the anesthesia machine used during the surgery had been disassembled by the machine's manufacturer. When the child's parents discovered the machine's condition, they added a claim against St. Mary's for the negligent or intentional destruction of the machine, alleging that St. Mary's knew of the parents' potential claim against the manufacturer, that the hospital had a duty to preserve the machine, and that their failure to preserve the machine had significantly impaired the parents' ability to prove their cause of action against the manufacturer.

In St. Mary's Hospital, Inc., the court adopted the elements of a spoliation claim set forth in Continental Insurance Co. v. Herman, 576 So.2d 313, 315 (Fla. 3d DCA 1990):

(1) existence of a potential civil action, (2) a legal or contractual duty to preserve evidence which is relevant to the potential civil action, (3) destruction of that evidence, (4) significant impairment in the ability to prove the lawsuit, (5) a causal relationship between the evidence destruction and the inability to prove the lawsuit, and (6) damages.

Wal-Mart argues that the dismissal was correct because, in order to state a claim for spoliation of evidence, the "duty" to preserve the item in question must be shown by contract, agreement, statute or administrative regulation. See, e.g., Builder's Square, Inc. v. Shaw, 755 So.2d 721, 723-24 (Fla. 4th DCA 1999)

(finding that worker's compensation statute imposed on employer a duty to preserve evidence), review denied, 751 So.2d 1250 (Fla.2000); Brown v. City of Delray Beach, 652 So.2d 1150, 1153 (Fla. 4th DCA 1995)(finding that duty to preserve could arise as result of officer's repeated promises); Cont'l Ins. Co. v. Herman, 576 So.2d 313, 315 (Fla. 3d DCA 1990)(finding that duty to preserve arose as result of agreement); Bondu v. Gurvich, 473 So.2d 1307 (Fla. 3d DCA 1984)(finding a duty to preserve as result of administrative regulations). But see Hagopian v. Publix Supermarkets, Inc., 788 So.2d 1088 (Fla. 4th DCA 2001)(implicitly recognizing a retail establishment's duty to preserve evidence—a broken bottle—in the absence of any contract, statute or administrative regulation), review denied, 817 So.2d 849 (Fla.2002).

Irrespective of the duty issue, we find that the Martinos' spoliation of evidence claim suffers from a fundamental flaw. Here, the Martinos allege that Wal-Mart's failure to preserve evidence has impaired their ability to prevail in the very negligence claim they have brought against Wal-Mart. These facts raise an issue that this district has never squarely addressed—whether an independent cause of action for spoliation of evidence is proper when the defendant in the spoliation claim is also the defendant in the underlying claim allegedly impaired by the loss or destruction of the evidence.

The California Supreme Court recently wrestled with this question in Cedars-Sinai Medical Center v. Superior Court, 18 Cal.4th 1, 74 Cal.Rptr.2d 248, 954 P.2d 511 (1998), and concluded that the answer is "no." In Cedars-Sinai, a medical malpractice suit was brought against the hospital and others after an infant suffered oxygen deprivation during birth. The defendant hospital was unable to locate some of the records, including the fetal monitoring strip that recorded the infant's heartbeat during labor. As a result, a claim was added for intentional spoliation of evidence. Noting that some of the state's lower courts had recognized an independent cause of action for spoliation of evidence, see Willard v. Caterpillar, Inc., 40 Cal.App.4th 892, 48 Cal.Rptr.2d 607 (1995),

and Smith v. Superior Court, 151 Cal.App.3d 491, 198 Cal.Rptr. 829 (1984), the California Supreme Court accepted review for the express purpose of deciding whether the state should recognize a tort remedy for the intentional destruction of evidence by one who is a party to the underlying action—a so-called "first party spoliator." See Cedars-Sinai, 74 Cal. Rptr.2d 248,

954 P.2d at 513.

While the court condemned the destruction of evidence, it believed that this was not reason enough to create tort liability for the conduct. The court noted that, historically, California's courts favored remedying litigation-related conduct with sanctions, including the presumption that evidence destroyed by a party would have been unfavorable to that party, monetary fines, contempt, exclusion of evidence, striking of pleadings, and even entry of default judgments—all authorized by California's rules of civil procedure. The court then cited the California Bar's disciplinary sanctions for attorneys who participate in the spoliation of evidence and the penal laws making it a crime to destroy evidence. Having addressed the adequacy of the remedies already in place to address the wrong, the court turned its attention to the pitfalls in adopting an independent cause of action in the first party spoliator context. Paramount among the court's concerns were the speculative nature of the harm and damages, and the potential for abuse. "`A new cause of action could accrue each time a plaintiff loses a lawsuit, for in most cases there is likely to be some piece of potential evidence that is not available at the time of trial.'" Id. at 519 (quoting Comment, Spoliation of Evidence: A Troubling New Tort, 37 U. KAN. L.REV. 563, 592 (1989)).

The California Supreme Court is not alone in its concerns. A number of jurisdictions have refused to recognize an independent cause of action for spoliation where the spoliator is the defendant in the underlying litigation, finding that remedies like sanctions and adverse evidentiary presumptions are adequate to address the problem. See, e.g., Sweet v. Sisters of Providence in Wash., 895 P.2d 484, 493 (Alaska 1995)

; Goff v. Harold Ives Trucking Co., 342 Ark. 143, 27 S.W.3d 387 (2000); Lucas v. Christiana Skating Ctr., Ltd., 722 A.2d 1247 (Del.Super.Ct.19...