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Waterman v. Acadiana Mall CMBS, LLC

Court of Appeals of Louisiana, Third Circuit

March 27, 2019



          Larry Lane Roy Elizabeth C. Austin Brown Sims, P.C. COUNSEL FOR DEFENDANTS/APPELLEES: Acadiana Mall CMBS, LLC CBL & Associates Management, Inc. Nickles and Dimes, Inc.

          Jeremy L. Pichon Alex A. Lauricella Didriksen, Saucier, Woods & Pichon COUNSEL FOR PLAINTIFF/APPELLANT: Aline Waterman

          Raymond Brown Attorney at Law COUNSEL FOR PLAINTIFF/APPELLANT: Aline Waterman

          Court composed of Ulysses Gene Thibodeaux, Chief Judge, Billy Howard Ezell, and John E. Conery, Judges.


         The plaintiff, Aline Waterman (Ms. Waterman), filed suit against the Acadiana Mall (the Mall) and related entities alleging injury from a fall on the premises. In her petition, the plaintiff noted the discovery of a ball and a wooden wedge in the vicinity of her fall. Following a three-day trial, however, the trial court rejected the plaintiff's claim and cited with particularity the lack of evidence regarding causation. The plaintiff appeals. For the following reasons, we affirm.


         In the petition instituting this matter, Ms. Waterman alleged that, on June 15, 2012, she was a patron of the Mall in Lafayette "when suddenly and without warning she fell on an amusement ball, which was used as a door stop, causing serious injuries[.]" Advancing theories of premises liability due to negligence, Ms. Waterman named the Mall and mall-related entities as defendants.[1] She sought medical expenses and general damages associated with physical injuries she related to the fall.

         During pre-trial proceedings, the plaintiff filed a motion seeking the presumption associated with spoliation of the evidence. By the motion, the plaintiff argued that the defendants failed to produce photographs of the scene of the fall, a daily activity report allegedly prepared by the Mall's security personnel, the "ball and wooden door-wedge" that she asserted caused her fall, and a statement that she contended was taken from a "key eyewitness" to the fall. Although the record does not contain a formal ruling on the motion, the trial court ultimately explained during the three-day trial on the merits that the spoliation claim was inapplicable under the circumstances present.

         In support of her claim at trial, the plaintiff presented testimony from Mall employees involved in the facility's maintenance, much of which involved the origins of the suspect wooden wedge and ball. The former object, the plaintiff contended, had fallen onto the floor from the frame of large glass doors at the Mall's entrance. And the ball, the plaintiff contended, could have come from an arcade near the site. The plaintiff suggested that the presence of these items indicated negligence on the part of the Mall.

         After the close of evidence, the trial court ruled in favor of the Mall, finding that the plaintiff failed to meet her burden of proof under La.R.S. 9:2800.6. The trial court explained in a combined judgment and reasons for ruling that "there was much inconsistency in the testimony of almost every witness called to testify[.]" In contrast, the trial court listed areas of consistency, including testimony indicating that "[t]wo objects (a wooden wedge and a small ball shaped item) were near where [the plaintiff] fell." The trial court also explained that evidence indicated that "a regular compliment of clean-up personnel" was on duty when the accident allegedly occurred and that "[w]ooden wedges such as the one found near where Plaintiff reported falling were used by mall personnel to stabilize a sliding door near that food court entrance."

         Nevertheless, the trial court further explained that:

[A] number of things were not established by the evidence. No one, not even the Plaintiff, could testify as to what caused her fall. No one could identify the source of the ball like object although some witnesses speculated it came from the Tilt Arcade. No one testified to seeing the Plaintiff fall. The gentleman who accompanied her was not called as a witness although Plaintiff identified him as her former fiancé.

         Given that absence of proof, the trial court stated that:

[C]onsidering all the evidence, Plaintiff has failed to prove by a preponderance of the evidence, that a condition existing on the premises of the Defendant caused her fall. While there was much discussion about the wooden wedge and it was sufficiently established that the wedge belonged to Defendant, the Plaintiff failed to prove the wedge caused her fall. To the contrary, she admitted she did not know what caused her fall, only that two objects, a wedge and a ball like object were observed near where she fell. As noted, there was no testimony from her companion, or anyone who observed the fall, and could provide a reason for the fall.
Inasmuch as Plaintiff has failed to prove by a preponderance of the evidence that a condition existing on the premises of the Defendant caused her fall she has failed to establish her case sufficiently to recover. Moreover, even if one were to assume one of the objects caused the fall (which assumption would be improper considering Plaintiff's burden or proof), Plaintiff failed to prove the condition existed for some time before the fall and failed to carry the burden of proving constructive notice as mandated by the statute.

         Pertaining to this latter point, the trial court explained:

The Plaintiff did not establish that either object was present for such a period of time that it would have been discovered if the merchant had exercised reasonable care. To carry the burden of proving this temporal element, a plaintiff must present "positive evidence" of the existence of the condition prior to the accident. A claimant who simply shows that the condition existed without an additional showing that the condition existed for some time before the fall has not carried the burden of proving constructive notice as mandated by the statute. In this case, it was established that the food court entrance where the fall is alleged to have occurred was very busy. Many customers would have traversed the area. The fall was reported at 12:40 P.M. The lunch crowd would have been using the entrance for at least 30 minutes prior to the fall, without incident.

         Accordingly, the trial court rendered judgment in favor of the defendants.

The trial court subsequently denied the plaintiff's motion for new trial, [2] reiterating its determination that the plaintiff "admitted she did not know what caused her fall, only that two objects, a wedge and a ball like object were observed near where she fell." Thus, the trial court explained that "[w]hile it might be possible that she slipped on the wedge or the small ball like object, she failed to establish the cause of her fall by a preponderance of the evidence. The presence of the two objects in the vicinity of her fall does not prove that either caused her to fall."

         The plaintiff appeals, assigning the following as error:

I. The trial court erred in denying Ms. Waterman's Spoliation Motion;
II. The trial court erred in not allowing Ms. Waterman to be refreshed with her deposition testimony; and
III. The trial court's judgment is not supported by law or fact.


         Spoliation of Evidence

         By her first assignment of error, the plaintiff contends that the trial court abused its discretion in denying her request for entry of a sanction related to spoliation of the evidence. In addition to the formal motion referenced above, the plaintiff pursued a line of questioning at the bench trial in which she suggested that she was not provided with a copy of a full accident report upon demand. In her appellate brief, the plaintiff further references evidence that she suggested existed at one time, but that the Mall failed to retain or turn over during discovery. The plaintiff states that "Acadiana Mall purposely failed to produce key evidence relating to the cause of [her] fall, including photographs, statements of a key eyewitness, and complete accident reports." Continuing, she asserts that "[a]s a result, an adverse inference should have been ordered that Ms. Waterman's fall was caused by one (1) of the two (2) small objects that were lying on the ground in the food court entrance." The plaintiff contends, in support, that "[i]t is customary and logical for Acadiana Mall [ ] to retain the evidence at issue, as it assists in investigating the scene of an accident." She further points to testimony of employees of the Mall which, she suggests, is indicative of additional evidence having been gathered.

         The evidentiary doctrine of spoliation of evidence "refers to an intentional destruction of evidence for the purpose of depriving the opposing parties of its use in pending or anticipated litigation[.]" Walker v. Manitowoc Co., Inc., 16-897, p. 20 (La.App. 3 Cir. 10/10/18), 259 So.3d 465, 478 (quoting Carter v. Hi Nabor Super Mkt., LLC, 13-0529, p. 6 (La.App. 1 Cir. 12/30/14), 168 So.3d 698, 703, writ denied, 15-0190 (La. 4/17/15), 168 So.3d 399). See also Temes v. Manitowoc Corp., 14-93 (La.App. 5 Cir. 12/23/14), 181 So.3d 733. In the event a trial court determines that a suspect party failed to produce evidence within its control, the trial court may impose a sanction, including "an instruction to the jury that it may infer that the evidence was detrimental to that party." Carter, 168 So.3d at 704. That adverse inference, however, is not applicable "when the party gives an adequate explanation for the failure to produce the evidence." Id. On appeal, a trial court's ruling on the issue of spoliation of evidence is reviewed for abuse of discretion. Id.

         Following consideration, we find no abuse of discretion in the trial court's refusal to apply the adverse presumption as urged by the plaintiff. We first point out that the plaintiff's presentation of the spoliation issue to the trial court and, in turn, the trial court's consideration of the motion is not squarely presented in this record. Certainly, the plaintiff's formal, pre-trial motion for sanctions related to the claim of spoliation of evidence is contained therein. The record contains no pre-trial ruling on that motion.

         However, the trial court's refusal to apply the evidentiary doctrine of spoliation of the evidence is best reviewed within the context of the case. The transcript indicates that the matter complained of by the plaintiff in her assignment of error arose during a line of inquiry on redirect examination. Defense counsel objected, resulting in the following colloquy which merged concepts of relevancy of the questioning and spoliation of the evidence:

Q. [Plaintiff's counsel] When you went back to the mall to talk - - I mean, to try to get a copy of the incident report - - I think, earlier, you testified that you - - an employee of the mall put you on the phone with somebody?
A. Yes.
Q. Okay. And can you tell me what that conversation was, again[?]
MR. ROY [Defense counsel]: Your Honor, I think we've gone through all of this.
THE COURT: Well, we have. And it's really irrelevant. Unless it has to do with a fact of the accident, whether they cooperated or not has nothing to do with whether they're liable.
MR. PICHON [Plaintiff's counsel]: Okay.
THE COURT: I mean, I don't understand the point of it.
. . . .
THE COURT: - - nobody is denying that they said that they could not give her the report and that she would have to contact [the] home office. So nobody's denying that.
MR. PICHON: Okay. It was the conversations with the corporate guy.
THE COURT: Well, really, he didn't say anything, other than, you know, I'm not giving you the report. I mean, I don't know what that has to do with anything. Whether she got the report or not has nothing to do with whether they're liable.
MR. PICHON: Fair enough, Your Honor. All right. And, Your Honor, the conversations with Mr. Mike Arnette, as we understand it, would have been - - We, now, believe that Mr. Mike Arnette might have been an attorney for corporate.
And that would have gone to - - Those conversations would have put him on notice that litigation would ensue and possibly gone to the spoliation motion, which we previously filed.
THE COURT: Well, I mean, first of all, we've been through the spoliation motion.[3] Spoliation applies if there is some testing or something that needs to be done to an object.
In this case, you've got a piece of wood and a ball. Okay? Everybody's got a picture of it. There's no spoliation.
Nobody's denying it existed. So I just don't think spoliation is, really, an issue in this case.
MR. PICHON: Yes, Your Honor.
THE COURT: And, secondly, the fact that she went and talked to somebody in an office doesn't mean she's going to file suit. I mean - - So I just ...

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