JOHN CARTER, JR.
HI NABOR SUPER MARKET, LLC AND LIBERTY MUTUAL GROUP, INC
Appealed from the Nineteenth Judicial District Court, In and for the Parish of East Baton Rouge State of Louisiana. Docket Number C599877. The Honorable Timothy E. Kelley, Judge Presiding.
Patrick Daniel, Lafayette, LA, Counsel for Plaintiff/Appellant, John Carter, Jr.
Michael M. Thompson, Baton Rouge, LA, Counsel for Defendant/Appellee, Hi Nabor Super Market, LLC.
BEFORE: WHIPPLE, C.J., KUHN, McDONALD, WELCH, AND CRAIN, JJ. CRAIN, J concurs in part and dissents in part and assigns reasons. McDonald, J. dissents in part and agrees in part with reasons. Whipple, C.J. concurring in part and dissenting in part and assigns reasons by JEW. Welch, J. concurs in part and dissents in part for the reasons assigned by C.J. Whipple.
[2013 0529 La.App. 1 Cir. 2]
This appeal is taken by plaintiff-appellant, John Carter, Jr., from a March 5, 2013 judgment of the trial court granting summary judgment in favor of defendant-appellee, Hi Nabor Supermarket LLC, dismissing Carter's claims, with prejudice. In conjunction with his appeal of that final judgment, Carter also challenges the trial court's September 12, 2012 interlocutory judgment denying his " Motion for Adverse Inference on Spoliation" of evidence. For the following reasons, we affirm the denial of the motion for adverse inference, reverse the summary judgment in favor of Hi Nabor dismissing Carter's claims, and remand to the trial court for further proceedings.
FACTS AND PROCEDURAL HISTORY
The record reflects that on April 27, 2010, Carter and his brother-in-law, Malcolm Spillers, were walking in Hi Nabor towards the deli area to purchase a plate lunch when Carter slipped and fell on a substance on the floor. The fall was recorded on Hi Nabor's
videotape surveillance system, which shows clear, color video of the exact area
where Carter fell, as well as a small, dark object on the floor in front of the
deli area where Carter slipped. After falling, Carter was assisted up off of the
floor by Spillers and another man. Carter later testified in a deposition that
at the time he slipped, he was looking at Spillers, that he
did not notice anything on the floor, and that he initially thought he may have
slipped in some type of liquid or water. However, Spillers stated in his
deposition that Carter slipped on a grape, explaining that he saw the grape on
the bottom of Carter's shoe and also saw where Carter smeared the grape on the
floor when he stepped on it.
[2013 0529 La.App. 1 Cir. 3] After the fall, Carter told a cashier that he had slipped and fallen in the back of the store. After returning to his home, Carter also called the manager, Velta Walker, to report the incident, telling her that he slipped on a liquid.
Shortly after the accident, Carter's original attorney sent, by certified mail, a letter to Hi Nabor dated May 19, 2010, advising Hi Nabor that Carter was represented by counsel " in any and all matters concerning a slip and fall which occurred at [the] store on April 27, 2010." Thereafter, on March 7, 2011, Carter filed a suit for damages against Hi Nabor and its insurer, Liberty Mutual, alleging liability in that the failure to properly maintain the premises created a defect that constituted an unreasonably dangerous condition.
During the course of discovery, Carter eventually learned that portions of the videotape recording of the day of the accident, particularly those portions prior to Carter's fall, had been destroyed. As a result, on April 11, 2012, Carter filed a " Motion for Adverse Inference on Spoliation," requesting that the trial court enter an adverse evidentiary inference instructing the jury that Hi Nabor had destroyed videotape evidence of the scene of his accident and that had this evidence been maintained, it would have been unfavorable to the defendant. Specifically, Carter requested that the trial court " enter an adverse inference instructing the jury that had Hi Nabor not destroyed videotape evidence of the scene of Plaintiff s accident, the videotape would have shown that the foreign object, the grape, was on the grocery store floor for such a time period that the defendant would have discovered it by the exercise of ordinary care."
[2013 0529 La.App. 1 Cir. 4] Carter also filed a motion for partial summary judgment on the issue of liability, contending that Hi Nabor was " liable for the accident... as a direct result of its failure to keep its premises free of any hazardous conditions."
Both motions were heard by the trial court on August 20, 2012, after which the trial court denied both the motion for adverse inference and the motion for partial summary judgment. In denying Carter's motion for partial summary judgment on liability, the trial court found that without an adverse evidentiary inference, there were genuine issues of material fact, especially as to the issue of actual or constructive notice, which precluded summary judgment in Carter's favor. A written judgment in accordance with these rulings was signed by the trial court on September 12, 2012.
Thereafter, Hi Nabor filed a motion for summary judgment, seeking dismissal of Carter's case on the basis that, since Carter could not provide any evidence as to how the foreign object came to be on the floor or for how long it had been there, he would be unable to prove a necessary element of his case, i.e., that Hi Nabor possessed actual or constructive notice of its presence. After a hearing on February 19, 2013, during which the trial court noted that this court had denied the writ application taken from the trial court's denial of plaintiff's motion on spoliation, the trial court granted Hi Nabor's motion for summary judgment and dismissed Carter's case, with prejudice. The trial court signed written judgment so providing on March 5, 2013.
Carter now appeals the March 5, 2013 judgment of the trial court granting Hi Nabor's motion for summary judgment and dismissing Carter's claims, with [2013 0529 La.App. 1 Cir. 5] prejudice. He also challenges the September 12, 2012 judgment of the trial court, denying his motion for an adverse inference due to spoliation. 
Rule to Show Cause
A rule to show cause order was issued by this court ex proprio motu concerning the appealability of the September 12, 2012 judgment of the trial court. After briefing of the issue by the parties, the matter was referred to the merits of this appeal by a different panel of this court. Thus, as a preliminary matter, we will address whether the September 12, 2012 judgment is properly before us for review on appeal.
A judgment that does not determine the merits, but only determines preliminary matters in the course of the action, is an interlocutory judgment, which is appealable only when expressly provided by law. La. C.C.P. arts. 1841 & 2083(C). However, when, as in this case, an unrestricted appeal is taken from a final judgment, the appellant is entitled to seek review of all adverse interlocutory judgments rendered in the same case, in addition to the review of the final judgment. Welch v. East Baton Rouge Parish Metropolitan Council, 10-1531 (La.App. 1st Cir. 3/25/11), 64 So.3d 244, 247 n.2.
The September 12, 2012 judgment of the trial court denying both Carter's motion for an adverse evidentiary inference and his motion for partial summary judgment is an interlocutory judgment that does not determine the merits, but only addresses preliminary matters in the course of this action or is otherwise not a final judgment subject to review on appeal. La. C.C.P. art. 1841; Starkey v. Livingston Parish Council, 12-1787 (La.App. 1st Cir. 8/6/13), 122 So.3d 570, 573 n.1. However, because the March 5, 2013 judgment granting Hi Nabor's [2013 0529 La.App. 1 Cir. 6] motion for summary judgment and dismissing Carter's case, with prejudice, is a final judgment properly before us on appeal, Carter is entitled to seek review of all interlocutory rulings rendered against him in this case.
the rule to show cause is recalled and the appeal is
maintained as to the judgment of September 12, 2012.
Spoliation of the Evidence
On appeal, Carter contends the trial court abused its discretion in denying his motion for an adverse inference and jury instruction against Hi Nabor in view of Hi Nabor's inadequate explanation for the destruction of the portion of the videotape showing the condition of the supermarket's floor preceding Carter's fall. In particular, Carter contends that, despite having knowledge of his slip and fall on a foreign object located on the floor, and despite specifically reviewing the videotape with knowledge of the pending claim, Hi Nabor unilaterally decided to limit how much of the videotape it would retain. He maintains that Hi Nabor's intentional purging of the videotape of the critical time period preceding his fall ultimately caused him to suffer irreparable injury.
Spoliation of the evidence is an evidentiary doctrine that refers to an intentional destruction of evidence for the purpose of depriving the opposing parties of its use in pending or anticipated litigation. BancorpSouth Bank v. Kleinpeter Trace, L.L.C., 13-1396 (La.App.
1st Cir. 10/1/14), 155 So.3d 614, Clavier v. Our Lady of the Lake Hospital Inc., 12-0560 (La.App. 1st [2013 0529 La.App. 1 Cir. 7] Cir. 12/28/12), 112 So.3d 881, 885, writ denied, 13-0264 (La. 3/15/13), 109 So.3d 384. The duty to preserve evidence arises from the foreseeability of the need for the evidence in the future. Clavier, 112 So.3d at 885. While it has roots in the common law, the evidentiary doctrine of spoliation of the evidence has been recognized in Louisiana since at least 1847. See New Orleans Draining Company v. De Lizardi, 2 La.Ann. 281, p. 6 (La. 1847). In an early case in which corporate managers refused to produce corporate records to interested stockholders, the Louisiana Supreme Court held that the manager's refusal justified a court and jury to draw " the most unfavorable inference, consistent with reason and probability, as to the nature and effect of the evidence which the opposite party has been precluded from using and examining as a means for the discovery of the truth." Varnado v. Banner Cotton Oil Co., 126 La. 590, 590-92, 52 So. 777, 777-79 (1910).
A trial court has the authority to impose sanctions on a party for spoliation of evidence and other discovery misconduct under both its inherent power to manage its own affairs and the discovery articles provided in the Louisiana Code of Civil Procedure. Under La. C.C.P. art. 1471, when a party refuses or is unable to ...