Woodard v. Wal-Mart Stores East, LP

• Decision Date: 13 July 2011
• Docket Number: No. 5:09–CV–428 (CAR).,5:09–CV–428 (CAR).
• Parties: Jimmy WOODARD, Plaintiff, v. WAL–MART STORES EAST, LP, Defendant.
• Court: U.S. District Court — Middle District of Georgia

801 F.Supp.2d 1363

Jimmy WOODARD, Plaintiff,

v.WAL–MART STORES EAST, LP, Defendant.

No. 5:09–CV–428 (CAR).

United States District Court, M.D. Georgia, Macon Division.

July 13, 2011.

Michael G. Horner, W. Carl Reynolds, Macon, GA, for Plaintiff.

Albert J. Decusati, Atlanta, GA, for Defendant.

ORDER ON PLAINTIFF'S MOTION FOR SANCTIONS AND DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

C. ASHLEY ROYAL, District Judge.

This matter comes before the Court for the resolution of several motions: Defendant Wal–Mart's Motion for Summary Judgment [Doc. 26], Plaintiff Jimmy Woodard's Motion for Sanctions [Doc. 48], and Defendant Wal–Mart's Motion for Leave to File a Sur-reply [Doc. 58]. This is premises liability case based on a trip-and-fall accident that Plaintiff Woodard suffered in a Wal–Mart store. The central question is whether Plaintiff Woodard has produced sufficient evidence to create the necessary genuine issues of material fact as to Wal–Mart's liability in order to defeat Wal–Mart's Motion for Summary Judgment. The resolution of Plaintiff Woodard's Motion for Sanctions, in which he seeks sanctions for what he alleges was the spoliation of key evidence by Wal–Mart will figure prominently in deciding the summary judgment question.

Having considered the spoliation matter, the Court finds both that the circumstances surrounding the loss or disappearance of the security videotape of the area of the fall at the time of Plaintiff's fall are sufficient to support a jury finding of bad faith on Wal–Mart's part and that the loss of this videotape is prejudicial to Plaintiff's case. As a result, Plaintiff's Motion [Doc. 48] is GRANTED–in–PART. As explained below, if this case proceeds to a jury trial, the jury will be instructed that if it finds that Wal–Mart lost or destroyed the tape in bad faith, then there is a rebuttable presumption that the videotape contained evidence harmful to Wal–Mart on the issue of whether it had superior knowledge of the hazard. To the extent Plaintiff's Motion requests sanctions for Wal–Mart's failure to retain the specific box of weights Plaintiff tripped over, Plaintiff's Motion is DENIED–in–PART.

The resolution of the Motion for Sanctions dictates that there is a genuine issue of material fact to be determined at trial as to the first prong of the premises liability analysis—whether Wal–Mart had actual or constructive knowledge of the hazard. Furthermore, there is also a genuine issue of material fact as to the second prong—whether Woodard exercised ordinary care or whether any negligence on his part was the result of actions or conditions within Wal–Mart's control. Thus, Wal–Mart's Motion for Summary Judgment [Doc. 26] is DENIED.

Wal–Mart also filed a Motion for Leave to File a Sur-reply Brief as to the question of sanctions [Doc. 58]. That motion is DENIED.

I. BACKGROUND

This case concerns a trip-and-fall in a Wal–Mart store. On the night of November 5, 2007, around 10:30 p.m., Plaintiff Woodard realized that his cell phone was missing. When he called his own number to locate his phone, the voice on the other end confirmed his suspicion that he had left his phone in the automotive department of the Wal–Mart store located on Harrison Road in Macon, Georgia, when he had visited the store two or three hours earlier. Having located his phone, Plaintiff Woodard and his friend Alan Bray made their second trip of the day to the store in order to retrieve the cell phone.

When they returned to the store, they entered through the general merchandise door and headed toward the automotive department. As Plaintiff Woodard walked down a main aisle toward the automotive department, he observed two men that he believed were Wal–Mart employees standing roughly forty feet down the main aisle. One of the men raised a cell phone in the air and inquired whether Plaintiff Woodard was “looking for this?”. The man then began walking down the aisle toward Plaintiff Woodard and Bray, holding the phone in the air.

Plaintiff Woodard continued up the aisle toward the employee with the phone. As he did so, he passed two stack bases ¹ positioned in the center of the aisle. Plaintiff Woodard met the Wal–Mart employee with his phone near the third stack base in the aisle. The employee gave Plaintiff Woodard his phone as Woodard neared the far end of the third stack base.

What happened next is a matter of some dispute. According to Woodard, after receiving his phone, he turned to the right, intending to pass across the third stack base and return to the front of the store using the opposite side of the main aisle. As he took a step, he stubbed his right foot on a box weights that was on the floor against the stack base. As a result, he fell to the floor.

According to Alan Bray, after Woodard got his phone from the employee, Woodard and Bray turned and began to walk back down the aisle toward the front of the store. As they walked down the aisle, Woodard told Bray to move out of the way to allow an employee coming down the aisle behind them to pass through. As they stepped out of the aisle, Woodard fell. Bray did not actually see Woodard fall; instead, he heard a noise and saw Woodard on the floor. Bray then saw a box of weights on the floor against the stack base. The parties agree that there was a box of weights on the floor against the stack base and that the box was roughly six inches high, a foot and a half wide, and four to five feet long.

Given that Plaintiff Woodard was only in the store for a brief period of time before his fall, he has no personal knowledge on the circumstances leading up to his fall, other than his own actions. He concedes that he has no personal knowledge of how long the box was on the floor prior to his fall or of how the box arrived at its fateful destination. He also concedes that he has no personal knowledge of whether Wal–Mart knew that the box was on the floor before he tripped on it. That is to say, although he interacted with several Wal–Mart employees after his fall, none of them ever stated that they knew the box was there, or how it got there, or how long it had been there.

One of the Wal–Mart employees that Woodard interacted with that night was Kenyatta Salazar, the assistant manager on duty at the time. Salazar spoke with Woodard and Bray after Woodard's fall and then filled out an incident report, which she submitted to Claims Management, Inc. (“CMI”), Wal–Mart's claims handling agent.

Within the next day or two after the fall, Glendon Bedeau, the Asset Protection Coordinator for the store at that time, reviewed the security camera footage from the area of the fall. In his deposition Bedeau stated that the video showed two customers walking up the action alley, but that when they went between the stack bases, nothing else was visible. He stated that he could not see any fall because it was alleged to have happened between two stack bases. When asked if the tape showed the floor around the stack base, he stated that the top and the side of the stack base was visible, but that the area between the stack bases was not. He further stated that he did not see the box that Plaintiff Woodard tripped over on the tape. He saved the relevant portion of the tape to be sent to CMI. [ See generally Doc. 37].

Two days after the incident, on November 7, 2007, Wanda Adams, an adjuster for CMI assigned to the incident, requested any video of the area of the fall. On April 28, 2008, before this suit was filed, counsel for Plaintiff Woodard spoke to Adams regarding the tape. Adams advised counsel that she could not release the video, but that it would have to be produced through discovery during litigation. According to her declaration, Adams had not viewed the tape sent by Wal–Mart at that time. [ See generally Doc. 56 Exh. B].

Some time after April 28, 2008, Adams viewed the tape in her possession. According to her declaration, she learned at that point that the tape in her possession was not the tape of the area of Plaintiff Woodard's fall. Instead, the tape was of an entirely different incident involving a customer named Donald Williams. Adams asked Wal–Mart to resend the video of Plaintiff Woodard's accident, but by that time the video hard drives had been changed. [ See id.].

According to Adams's declaration, she does not know what happened to the video of the area at the time of Plaintiff Woodard's accident that Bedeau viewed and saved to be sent to CMI. She does not know whether it was ever sent by the store, whether it was shipped incorrectly, or whether it was mislabeled or misfiled at the store or at CMI. She states that she has never been in possession of any video of Plaintiff Woodard's accident, nor has she ever seen any video of Plaintiff Woodard's accident. She further states that she did not intentionally lose, destroy, or misplace the video. For his part, Bedeau also states that he does not know whether the tape was mailed incorrectly or mislabeled or misfiled at CMI or the store, but professes that he did not intentionally lose, destroy, or misplace the video.

On October 15, 2009, Plaintiff Woodard filed suit against Wal–Mart in the State Court of Bibb County, Georgia. Woodard alleged that his fall caused injuries to his cervical spine that resulted in physical pain and that caused him to incur medical expenses and lost wages. On December 17, 2009, Wal–Mart removed the action to this Court based on diversity of citizenship jurisdiction.²

After the close of discovery, the parties filed a number of motions. Wal–Mart filed a Motion for Summary Judgment [Doc. 26], and two Motions in Limine regarding Woodard's expert testimony [Docs. 27 and 28]. In addition to responding to those motions, Plaintiff Woodard also filed a Motion for Sanctions seeking spoliation sanctions based on the loss of the videotape of his fall [Doc. 48]. After full briefing on the Motion for Sanctions, Wal–Mart requested leave to file a sur-reply brief regarding the issue [Doc. 58]. In this...