Wal-Mart Stores, Inc. v. Johnson

• Decision Date: 22 May 2003
• Docket Number: No. 01-0441.,01-0441.
• Citation: 106 S.W.3d 718
• Parties: WAL-MART STORES, INC., Petitioner, v. Monroe JOHNSON and Brandy Johnson, Respondents.
• Court: Texas Supreme Court

106 S.W.3d 718

WAL-MART STORES, INC., Petitioner, v. Monroe JOHNSON and Brandy Johnson, Respondents.

No. 01-0441.

Supreme Court of Texas.

Argued March 20, 2002.

Decided May 22, 2003.

Kevin D. Jewell, Alan N. Magenheim, Magenheim, Bateman & Helfand, P.L.L.C., Houston, and Douglas W. Alexander, Scott Douglass & McConnico, L.L.P., Austin, for Petitioner.

Mark C. Sparks, Joseph J. Fisher, II, Provost & Umphrey Law Firm, L.L.P., Beaumont, for Respondent.

Chief Justice PHILLIPS delivered the Opinion of the Court.

In this negligence case, we must decide whether the trial court abused its discretion when it instructed the jury that it could presume that certain missing evidence, had it been preserved, would have been adverse to defendant, Wal-Mart Stores, Inc. Holding that the trial court had not abused its discretion in submitting this spoliation instruction, the court of appeals affirmed the judgment in favor of the plaintiffs, Monroe and Brandy Johnson. 39 S.W.3d 729. Wal-Mart petitioned for review, arguing that submitting this instruction was an abuse of discretion because the evidence in question was not spoliated, but rather was innocently disposed of in the normal course of business before Wal-Mart had notice of the Johnsons' claim. Because we agree that Wal-Mart had no duty to preserve the evidence and that the instruction was harmful error on the record of this case, we reverse the judgment of the court of appeals and remand the case to the trial court for further proceedings.

I

While stocking merchandise, a Wal-Mart employee accidently knocked one or more decorative reindeer from a high shelf onto Monroe Johnson's head and arm. Johnson's fiancee, now his wife, was with him and heard but did not see the accident. When she went to investigate, she found her fiancee dazed, but still standing, with a cut on one arm and several reindeer lying at his feet. At the scene, Johnson told Phyllis McClane, a Wal-Mart supervisor who had come to investigate, that he was not hurt. After a Wal-Mart employee cleaned and bandaged his cut, Johnson and his fiancee left the store.

During her investigation, McClane took notes, photographed the reindeer, and obtained a written statement from the employee who caused the accident. She recorded the results of her investigation on a Wal-Mart form entitled "Report of Customer Incident." She attached the photo and the employee's statement, sending copies to the District Manager and claim management personnel. According to the incident report, Johnson neither threatened to sue nor indicated that Wal-Mart should pay any medical costs or other damages. After completing the report, McClane discarded her notes.

That evening, Johnson's neck and arm began to hurt, and he could not sleep. The next day, his doctor prescribed muscle relaxers, pain killers, and physical therapy. Still in pain six months later, Johnson and his wife sued Wal-Mart. While suit was pending, Johnson consulted three additional physicians and tried additional treatments without success. About seventeen months after the accident, a surgeon performed an anterior cervical discectomy and fusion on Johnson's neck.

During discovery, the Johnsons asked whether Wal-Mart still possessed the reindeer that fell on him. Wal-Mart did not, but offered to provide a "reasonable facsimile." The Johnsons did not want the facsimile, and the trial court granted their motion in limine prohibiting Wal-Mart "from introducing into evidence a reasonable facsimile of the reindeer made the basis of this lawsuit."

At trial, the parties offered sharply divergent evidence about the composition and weight of the reindeer in question. Johnson testified that they were made of wood, each weighing as much as ten pounds. Ron Wheeler, the store manager, countered that the reindeer were made of papier mâchè and weighed only five to eight ounces each. Wal-Mart argued that such flimsy reindeer could not have proximately caused Johnson's neck problems, which it claimed resulted from an automobile accident years earlier. Wheeler also testified that Wal-Mart could not produce any of the reindeer because they had all been sold or, if broken, thrown away. Only the photograph of the reindeer was introduced in evidence, but its quality was too poor to substantiate or rebut either party's description.

Based on Wal-Mart's failure to keep the reindeer, the Johnsons requested and obtained the following spoliation instruction from the trial court:

You are instructed that, when a party has possession of a piece of evidence at a time he knows or should have known it will be evidence in a controversy, and thereafter he disposes of it, makes it unavailable, or fails to produce it, there is a presumption in law that the piece of evidence, had it been produced, would have been unfavorable to the party who did not produce it. If you find by a preponderance of the evidence that Wal-Mart had possession of the reindeer at a time it knew or should have known they would be evidence in this controversy, then there is a presumption that the reindeer, if produced, would be unfavorable to Wal-Mart.

In its verdict, the jury found Wal-Mart negligent and awarded $76,000 in damages. The trial court rendered judgment on this verdict, and the court of appeals, with one justice dissenting, affirmed. 39 S.W.3d 729. We granted Wal-Mart's petition for review to determine whether a spoliation instruction¹ was appropriate in this case.

II

Evidence may be unavailable for discovery and trial for a variety of reasons. Evidence may be lost, altered or destroyed willfully and in bad faith or it may be lost for reasons completely innocent. Sometimes, lost evidence may be easily replicated, or it may be so marginal that it has little or no effect on the outcome of the case. On other occasions, the loss or destruction of evidence may seriously impair a party's ability to present its case. A trial judge should have discretion to fashion an appropriate remedy to restore the parties to a rough approximation of their positions if all evidence were available. See generally TransAmerican Natural Gas Corp. v. Powell, 811 S.W.2d 913, 917 (Tex.1991). These remedies must generally be fashioned on a case-by-case basis. See Trevino v. Ortega, 969 S.W.2d 950, 953 (Tex.1998).

In this case, the trial court decided to remedy what it perceived to be Wal-Mart's misconduct by giving a spoliation instruction. The instruction informed the jury that it must presume that the missing reindeer would have harmed Wal-Mart's case if the jury concluded that Wal-Mart disposed of the reindeer after it knew or should have known that they would be evidence in the case. Such an instruction is a common remedy for spoliation, with roots going back to the English common law. See Armory v. Delamirie, 93 Eng. Rep. 664 (K.B.1722). Its purpose is captured in the Latin maxim omnia presumuntur contra spoliatorem, "all things presumed against a despoiler or wrong-doer." BLACK'S LAW DICTIONARY 980 (5th ed.1979). The presumption has been a part of Texas jurisprudence for over a century, and we have characterized it as an inference to be drawn by the jury. Curtis & Co. Mfg. Co. v. Douglass, 79 Tex. 167, 15 S.W. 154, 155 (1890). We have never had occasion, however, to define its use. See State ex rel. State Dep't of Highways & Pub. Transp. v. Gonzalez, 82 S.W.3d 322, 330 (Tex.2002) (unnecessary to decide whether spoliation instruction was erroneous); Trevino, 969 S.W.2d at 952 (mentioning but not applying this remedy); Malone v. Foster, 977 S.W.2d 562, 563 (Tex.1998) (mentioning adverse inference associated with spoliation); Curtis, 15 S.W. at 155 (same).

Our courts of appeals have generally limited the use of the spoliation instruction to two circumstances: [1] the deliberate destruction of relevant evidence and [2] the failure of a party to produce relevant evidence or to explain its nonproduction. See Anderson v. Taylor Publ'g Co., 13 S.W.3d 56, 61 (Tex.App.-Dallas 2000, pet. denied) (citing Wal-Mart Stores, Inc. v. Middleton, 982 S.W.2d 468, 470-71 (Tex.App.-San Antonio 1998, pet. denied)). Under the first circumstance, a party who has deliberately destroyed evidence is presumed to have done so because the evidence was unfavorable to its case. See Williford Energy Co. v. Submergible Cable Servs., Inc., 895 S.W.2d 379, 389-90 (Tex.App.-Amarillo 1994, no writ); Brewer v. Dowling, 862 S.W.2d 156, 159 (Tex.App.-Fort Worth 1993, writ denied). Under the second, the presumption arises because the party controlling the missing evidence cannot explain its failure to produce it. See Watson v. Brazos Elec. Power Co-op., Inc., 918 S.W.2d 639, 643 (Tex.App.-Waco 1996, writ denied).

Although the parties argue their respective positions under this second circumstance at length, we need not decide whether a spoliation instruction is justified when evidence is unintentionally lost or destroyed, or if it is, what standard is proper. Rather we begin and end our analysis here with the issue of duty, the initial inquiry for any complaint of discovery abuse. Before any failure to produce material evidence may be viewed as discovery abuse, the opposing party must establish that the non-producing party had a duty to preserve the evidence in question. See Wendorf et al., TEXAS RULES OF EVIDENCE MANUAL 111-12 (6th ed.2002); Kindel & Kai Richter, Spoliation of Evidence: Will the New Millennium See a Further Expansion of Sanctions for the Improper Destruction of Evidence?, 27 WM. MITCHELL L.REV. 687, 689 (2000). Such a duty arises only when a party knows or reasonably should know that there is a substantial chance that a claim will be filed and that evidence in its possession or control will be material and relevant to that claim. See 1 WEINSTEIN & BERGER, WEINSTEIN'S FEDERAL EVIDENCE § 301.06[4] at 301-28.3 (2d ed. 2003) ("[T]here must be a sufficient foundational showing that the party who destroyed the evidence had notice both of the potential claim...