Affirmed and Memorandum Opinion filed November 21, 2006.

 

 

In The

 

Fourteenth Court of Appeals

____________

 

NO. 14-05-00954-CV

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MARIA OLGA GARCIA, Appellant

 

V.

 

SELLERS BROS., INC., Appellee

 

 

On Appeal from the 215th District Court

Harris County, Texas

Trial Court Cause No. 04-36818

 

 

M E M O R A N D U M   O P I N I O N

In this premises liability case, appellant Maria Olga Garcia appeals the summary judgment granted in favor of appellee Sellers Bros., Inc., the owner of a food store where Garcia claimed she was injured when she slipped and fell in a puddle of liquid.  Garcia contends she raised genuine issues of material fact on the elements of her premises liability claim, and further contends that the trial court erred in disregarding her evidence of spoliation.  We affirm.

 

Factual and Procedural Background

Shortly after noon on April 27, 2004, while inside a retail food store owned by Sellers, Garcia slipped in a large puddle of a liquid cleaner she identified as APine-O-Pine.@  When Garcia fell, her pants, shoes and shirt became wet with the liquid.  A few feet away, a container of a liquid cleaner identified by Sellers as APinalen@ was discovered on top of some boxes of liquid soap.  The 33-ounce container was about half full and broken on the bottom.  According to Garcia, she saw the container Aleaking from the boxes.@  As a result of the accident, Garcia suffered pain in her left shoulder.

In July 2005, Garcia sued Sellers for premises liability.  After Garcia filed her second amended petition, Sellers moved for a no-evidence summary judgment.  Garcia then amended her petition a third time to include an allegation of spoliation of evidence because Sellers did not retain the container of liquid cleaner. 

After Garcia filed her third amended petition, Sellers amended its motion for summary judgment to assert both a no-evidence and a traditional motion for summary judgment.  Garcia then filed a fourth amended petition as well as a response to Sellers= amended motion for summary judgment.  In the response, Garcia asserted an additional basis for spoliation of evidence: she claimed that, shortly after the incident, Sellers either knowingly or negligently removed a videotape from surveillance cameras in the area where she fell.

In its reply to Garcia=s response to its amended motion for summary judgment, Sellers addressed both the substantive claims and the spoliation claim based on Sellers= alleged failure to retain the container; however, Sellers did not respond to the claim concerning the videotape.  In Garcia=s fifth amended petition, filed July 14, 2005, she added the same allegations she made in response to Sellers= amended motion for summary judgment of spoliation based on both the container and the videotape. 

On August 10, 2005, the trial court signed an order granting Sellers= first amended motion for summary judgment.  The trial court=s order stated in relevant part:

 

The Court noted that after the defendant filed its first amended motion, the plaintiff filed her fifth amended original petition.  The fifth amended original petition adds a claim of spoliation of evidence.  The plaintiff asks for Aall relief allowed for under the Rules regarding the defendant=s spoliation of evidence, including but not limited to an appropriate instruction to the jury.@  . . . The Court hereby disposes of the spoliation claim finding that no relief is available as a matter of law in light of the fact that the Court finds the defendant is entitled to judgment as a matter of law on plaintiff=s premises claim.

This appeal followed.

Analysis of Garcia=s Issues

Below, Sellers claimed it was entitled to summary judgment because Garcia had no evidence that (1) Sellers had actual or constructive knowledge of the condition on its premises, (2) Sellers failed to exercise reasonable care to reduce or eliminate the risk; and (3) its failure of care proximately caused Garcia=s injury.  See CMH Homes, Inc. v. Daenen, 15 S.W.3d 97, 99 (Tex. 2000).^[1]  Sellers also moved for traditional summary judgment on the element of actual or constructive knowledge of the condition, relying on Garcia=s own testimony that she did not know how the liquid got on the floor, who placed it on the floor, or how long it had been on the floor before she stepped in it. 

 

In response, Garcia claimed that her testimony and that of Sellers= employees raised a fact issue on the first and second elements, because the amount of liquid on the floor and the half-empty, damaged container of liquid provided temporal evidence to show that Sellers should have discovered the puddle and failed to exercise reasonable care to get rid of the spill.  Garcia pointed to her deposition testimony concerning her injury to raise a fact issue on the third element.  Finally, Garcia sought to avoid summary judgment by claiming that Sellers spoliated evidence by (1) failing to preserve the container even though it anticipated litigation the same day Garcia fell, and (2) knowingly or negligently removing a surveillance videotape of the area where she fell shortly after the incident.

On appeal, Garcia raises two issues:  (1) the trial court erred in granting summary judgment because she presented competent summary judgment evidence that created genuine issues of material fact on the elements of her premises liability claim; and (2) the trial court erred by disregarding her spoliation claim, which would have precluded summary judgment.  We will address these issue in reverse order, beginning with Garcia=s spoliation issue.  See Aguirre v. S. Tex. Blood and Tissue Ctr., 2 S.W.3d 454, 457 (Tex. App.CSan Antonio 1999, pet. denied) (reviewing the trial court=s rejection of a request for a spoliation presumption before applying summary judgment standard of review).

I.        Spoliation of Evidence

A.      Applicable Law and Standard of Review

Spoliation is the improper destruction of evidence, proof of which may give rise to a presumption that the missing evidence would be unfavorable to the spoliator.  Brumfield v. Exxon Corp., 63 S.W.3d 912, 919 n.3, 920 (Tex. App.CHouston [14th Dist.] 2002, pet. denied).  To raise the spoliation issue, the party seeking the presumption bears the burden of establishing that the alleged spoliator had a duty to preserve the evidence in question.  Wal‑Mart Stores, Inc. v. Johnson, 106 S.W.3d 718, 722 (Tex. 2003).  This duty to preserve evidence arises when a party knows or reasonably should know that (1) there is a substantial chance that a claim will be filed, and (2) evidence in its possession or control will be material and relevant to that claim.  Id.  When a party demonstrates an entitlement to a spoliation presumption, the presumption precludes a court from granting a summary judgment.  Aguirre, 2 S.W.3d at 457.  A trial court=s denial of a spoliation presumption is subject to an abuse of discretion standard of review.  See Johnson, 106 S.W.3d at 723; Aguirre, 2 S.W.3d at 457.

 

B.      Garcia=s Spoliation Claim

Garcia alleges spoliation of evidence based on two alleged actions:  (1) Sellers failed to produce the broken container of liquid cleaner; and (2) Sellers negligently or intentionally removed a surveillance camera videotape shortly after Garcia fell.  Because the trial court disregarded Garcia=s request for a spoliation presumption and granted Sellers= amended motion for summary judgment, we will treat the trial court=s action as a denial of Garcia=s request, because a presumption would have precluded summary judgment.  See Aguirre, 2 S.W.3d at 457.

1.       The Container of Liquid Cleaner

Garcia claims that Sellers failed to produce the broken container of liquid cleaner, even though it anticipated litigation on April 27, 2004, the day she fell.  The failure to produce the container, Garcia contends, deprived her of the opportunity to inspect and test the container to determine how slowly the liquid dripped, how long it would have taken to migrate to the area where Garcia fell, and the quantity of liquid on the floor.  Garcia asserts that this evidence would tend to provide further temporal proof in satisfaction of her burden to demonstrate that the puddle of liquid was on the floor long enough to charge Sellers with constructive notice of the spill.

Garcia supports her contention by pointing to Sellers= response to an interrogatory requesting Sellers to state the date it first anticipated litigation and to list the facts it relied on in support of its response.  Sellers responded as follows:  ALate on April 27, 2004, Plaintiff=s spouse called the store director, Tony Rodriguez, and wanted Tony to state that his wife had fallen in the store and that after the conversation, the Plaintiff=s husband stated he had recorded the conversation (without the consent of Tony Rodriguez).@  A Sellers= representative also confirmed, in a deposition, that Sellers anticipated litigation late in the day on April 27, 2004.  And, it is undisputed that the container was not produced.

 

However, the testimony of Sellers= store manager, Tony Rodriguez, who was working at the time of the accident, and Garcia herself confirm that any duty Sellers had to preserve the container did not arise at the time Garcia fell and a store employee cleaned up the spill.  Consequently, by the time Sellers acknowledges it anticipated litigation Alate in the day@ on the 27th, the evidence shows that Sellers had already disposed of the container.

Garcia contends she fell around 12:38 p.m. on the 27th, and a report filled out by a Sellers= employee states that the time of the incident was 12:36 p.m..  Rodriguez, the store manager, testified that he first became aware of the incident when an employee came up to him and told him that a lady had fallen down.  He immediately went to the area, and when he arrived, Garcia was already standing up.  When he asked Garcia if she was all right, she told him she was fine and walked out of the store.  Garcia did not tell him what she believed made her fall or that she had any arm pain.^[2]  Similarly, Garcia=s testimony confirmed that, after she got up she Ajust left,@ even though Rodriguez asked her to wait. 

Rodriguez testified that he called for a Sellers= employee, whose only job was to clean the floors, and told him about the bottle of Pinalen.  He personally instructed the employee to clean up the liquid.  Rodriguez also testified that it was store policy to deal with a leaking container by removing it and either sending it to a warehouse or throwing it away. 

 

Garcia=s threshold burden, as the party seeking the spoliation presumption, was to demonstrate that Sellers owed a duty to preserve the container because it knew or reasonably should have known that there was a substantial chance that a claim would be filed, and that the container would be material and relevant to that claim.  See Johnson, 106 S.W.3d at 722.  The facts above do not demonstrate that, at the time Garcia fell or when the spill was cleaned, Sellers was on notice that there was a substantial chance Garcia would file a claim.  Sellers= acknowledgment that it anticipated litigation the same day Garcia fell does not change this result, because Sellers first anticipated litigation only after Garcia=s husband called about Garcia=s fall Alate in the day.@^[3]  It was Mr. Garcia=s telephone call, not the circumstances surrounding Garcia=s fall, that Sellers admitted put it on notice, and this was well after Garcia had left the storeCwithout making any complaint of injuryCand the spill was cleaned up.  Although the evidence does not show that the container was, in fact, thrown away at the time the spill was cleaned up, store policy was that a leaking container was to be taken to a warehouse or thrown away, and there is no evidence the container was disposed of after Garcia=s husband called Rodriguez.  Therefore, as to this part of Garcia=s spoliation claim, she has failed to show that she was entitled to a spoliation presumption.  See Johnson, 106 S.W.3d at 721B22.

2.       The Videotape

Concerning the videotape, Garcia propounded a request for production on Sellers seeking a Atrue and correct copy of the video surveillance taken by cameras 2 and 8 from 12:30:00 a.m. to 1:38:00 p.m.@ on the date of the incident.  Sellers answered as follows:  AThere is none.  The tape was taken out at 12:38.@  According to Garcia, this answer reflects that Sellers either negligently or intentionally removed the videotape Afrom the only two store cameras that caught Garcia=s fall@ within seconds of her fall, and therefore demonstrates that Sellers spoliated evidence and it offered only a Anebulous excuse for the missing videotape.@

 

However, it is unclear from the request for production whether Garcia was requesting videotapes that ran for that specific period of time only, or whether she sought videotapes that included images recorded within that time frame; thus, we cannot determine whether Sellers= response was inadequate.  It is also unclear whether the tape referred to in Sellers= response (the one that was Ataken out@) was ever sought or could have been produced.  The substance of Garcia=s spoliation claim also is unclear, because her primary complaint appears to be that Sellers either negligently or knowingly ceased taping after the incident, not that Sellers destroyed or failed to produce any videotapes of the period before she fell.  Moreover, nothing in the record supports Garcia=s specific claim that Acameras 2 and 8@ are Athe only two cameras that show Garcia=s fall.@  Nor does the record support Garcia=s claim that the tape was removed Amere seconds after the fall,@ because the response does not specify whether the tape was removed at 12:38 a.m. or 12:38 p.m.  Therefore, Garcia did not satisfy her burden to demonstrate she was entitled to a spoliation presumption on the basis of the videotape.  See id.

On this record, we hold that the trial court did not abuse its discretion in denying Garcia=s spoliation claim.

2.       Sellers was Entitled to Summary Judgment as a Matter of Law

A.      Standards of Review

After adequate time for discovery, a party may move for summary judgment on the ground that there is no evidence of one or more essential elements of a claim or defense on which an adverse party would have the burden of proof at trial.  Tex. R. Civ. P. 166a(i).  A no evidence summary judgment is improper if the non‑movant presents more than a scintilla of probative evidence to raise a genuine issue of material fact.  Forbes, Inc. v. Granada Biosciences, Inc., 124 S.W.3d 167, 172 (Tex. 2003).  More than a scintilla of evidence exists if it would allow reasonable and fair‑minded individuals to differ in their conclusions.  Id.  Less than a scintilla of evidence exists when the evidence is so weak as to do no more than create a mere surmise or suspicion of fact.  Id. When determining if more than a scintilla of evidence has been produced in response to a Rule 166a(i) motion for summary judgment, the evidence must be viewed in the light most favorable to the non‑movant.  See Morgan v. Anthony, 27 S.W.3d 928, 929 (Tex. 2000).

 

The movant for traditional summary judgment must show that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law.  Tex. R. Civ. P. 166a(c); Nixon v. Mr. Property Management Co., Inc., 690 S.W.2d 546, 548 (Tex. 1985).  A defendant moving for traditional summary judgment must conclusively negate at least one essential element of each of the plaintiff=s causes of action or conclusively establish each element of an affirmative defense.  Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997).  Evidence is conclusive only if reasonable people could not differ in their conclusions.  City of Keller v. Wilson, 168 S.W.3d 802, 816 (Tex. 2005).  Once the movant establishes its right to summary judgment as a matter of law, the burden shifts to the non-movant to present evidence raising a genuine issue of material fact, thereby precluding summary judgment.  City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678B79 (Tex. 1979). When reviewing a traditional summary judgment, we take as true all evidence favorable to the non-movant, and we indulge every reasonable inference and resolve any doubts in the non-movant=s favor.  Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 157 (Tex. 2004).

B.      Sellers was Entitled to Summary Judgment

As noted above, Sellers sought a no-evidence summary judgment on three elements of a premises liability claim, and a traditional summary judgment on Sellers= actual or constructive knowledge of the conditionCin this case the puddle of liquid cleanerCon the premises.  See Daenen, 15 S.W.3d at 99.  Garcia contends she produced evidence to raise a fact issue on the elements of her claim, and the trial court erred by failing to accept her evidence as true and to resolve every reasonable inference in her favor.  We disagree.

 

Garcia was Sellers= invitee, and as such, Sellers owed her a duty to exercise reasonable care to protect her from dangerous conditions in its store that were known or reasonably discoverable.  See Wal-Mart Stores, Inc. v. Reece, 81 S.W.3d 812, 814 (Tex. 2002); Wal-Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934, 936 (Tex. 1998).  However, this duty does not make Sellers an insurer of Garcia=s safety.  See Gonzalez, 968 S.W.2d at 936.  To demonstrate actual or constructive knowledge of a condition on the premises, a plaintiff must establish that (1) the defendant placed the substance on the floor, (2) the defendant actually knew that the substance was on the floor, or (3) it is more likely than not that the condition existed long enough to give the premises owner a reasonable opportunity to discover it.  Reece, 81 S.W.3d at 814.  Here, the issue is whether the spill had been on the floor for a sufficient time to give Sellers a reasonable opportunity to discover it.  See id.

The rule requiring proof that a dangerous condition existed for some length of time before a premises owner may be charged with constructive notice is firmly rooted in our jurisprudence.  Id. at 815.  Commonly known as the Atime-notice rule,@ it is based on the premise that temporal evidence best indicates whether the owner had a reasonable opportunity to discover and remedy a dangerous condition.  Id. at 816.  Without some temporal evidence, there is no basis upon which the fact finder can reasonably assess the opportunity the premises owner had to discover the dangerous condition.  Id.

Garcia=s deposition testimony revealed that she had no evidence of how the liquid got on the floor or how long it had been on the floor before she stepped in it.  She also testified that she saw the partially empty, broken and dripping container of liquid cleaner only after she fell, and she had no evidence of who placed it on the nearby boxes or how long it had been there.  Moreover, she had no evidence that Sellers knew the container was there or  who put the container there or that Sellers knew the bottle was leaking before she fell.

 

Garcia contends, however, that the large size of the puddle and the broken container found nearby created a genuine issue of material fact on Sellers= constructive knowledge of that condition on its premises, because it is some evidence of the origin of the hazard and the length of time it existed before Garcia stepped in it.  But the size of the puddle, without more, is no evidence of the length of time the spill had been on the floor.  And, assuming the liquid on the floor came from the broken container leaking nearby, Garcia testified she did not see the container until after she fell.  No inference can be made from this testimony about the length of time the spill was on the floor.  In the absence of any other evidence, therefore, Garcia=s slight circumstantial evidence amounts to no more than a scintilla and is insufficient to raise a genuine issue of material fact.  See Reece, 81 S.W.3d at 816B17 (holding that evidence of employee=s proximity to spill, without more, was no evidence of premises owner=s constructive notice of spill); Gonzalez, 968 S.W.2d at 938 (holding evidence of dirty macaroni salad on floor and subjective testimony that it Aseemed like it had been there awhile@ was no evidence to support conclusion that premises owner had constructive knowledge of dangerous condition).

Garcia argues that her facts are similar to those in Wal-Mar Stores, Inc. v. Tinsley, 998 S.W.2d 664 (Tex. App.CTexarkana 1999, pet. denied), in which the appellate court found that the circumstantial evidence presented was sufficient to establish that Wal‑Mart had constructive notice of a puddle of water on its floor.  Garcia contends that, as in Tinsley, she testified that she located the origin of the dripping liquid, the puddle was large, and her clothes became wet as a result of the fall.  However, a review of the facts shows Tinsley stands in stark contrast to this case and does not support Garcia=s claim. 

In Tinsley, the plaintiff slipped and fell in a puddle of water.  Id. at 667.  She testified that after her fall, she noticed big circles and yellow stains on the ceiling tiles, and she stated that it looked like water had dripped through the tiles and then dried.  Id. at 668.  She stated the puddle was large, such that when she fell, probably three quarters of her body was lying in water, and her clothes became wet.  Id.  She also said she had seen water dripping into buckets from ceiling tiles in other locations of the store on several prior occasions.  Id.  A Wal‑Mart manager testified that she had, on several occasions, placed buckets to catch water leaking from the ceiling due to condensation from the air‑conditioning system.  Id.  She also testified that the size of a puddle of water on the floor would vary depending on how long it took an employee to discover it.  Id.  There was additional testimony that water dripped through the ceiling tiles due to air‑conditioning problems, and when the tiles became soaked with water, employees would take down the tiles so they would not fall on a customer.  Id. at 668B69.

 

Here, no remotely comparable evidence exists that would tend to show that the puddle of liquid cleaner had been on the floor a sufficient length of time to charge Sellers with constructive knowledge of its presence.  Again, assuming the liquid came from the broken container nearby, there is no evidence of who placed the container on the boxes or how long it had been there, and no evidence Sellers knew who put the container there or if Sellers knew the container was leaking before Garcia fell.  And, unlike Tinsley, there is no testimony that raises a fact issue on the Atime-notice rule.@ 

Thus, considering the evidence in the light most favorable to Garcia, the size of the spill and Garcia=s observation, after she fell, of the broken container nearby, are no evidence to raise a fact issue as to whether Sellers had constructive notice of the dangerous condition.  Because we hold Garcia produced no evidence to support the element of constructive knowledge of the condition on the premises, we do not reach the remaining elements.  We overrule Garcia=s first issue.

Conclusion

We overrule Garcia=s two issues and affirm the trial court=s judgment.

 

 

 

 

/s/      Wanda McKee Fowler

Justice

 

 

 

 

Judgment rendered and Memorandum Opinion filed November 21, 2006.

Panel consists of Justices Fowler, Edelman, and Frost.