Tort and subrogation cases continue to be heavily mined and booby-trapped with potential spoliation danger. However, the law in this area is far from clear. In the case of Brookshire Brothers v. Aldridge, 438 S.W.3d 9 (Tex. 2014), Jerry Aldridge slipped and fell at a Brookshire Brothers’ grocery store on September 2, 2004. On the day he fell, he notified the employees of his fall, but did not advise them that he was hurt. Five days later, he returned to fill out an incident report wherein he stated that he was injured when he slipped and fell on chicken grease. The grocery store located surveillance footage depicting the area of the fall. Two weeks later, Aldridge requested that the store preserve 1½ hours of additional surveillance footage, but the footage had already been overwritten. The surveillance system recorded for 30 days after which it would loop back and record over existing video. Aldridge alleged that the failure to preserve the video footage amounted to spoliation. The trial court instructed the jury that the store allowed its surveillance system to tape over the footage and, if the jury found that the store knew or should have known that such video contained relevant evidence and its disappearance was not adequately explained, it could consider that such evidence would have been unfavorable to the store. The jury found for Aldridge and awarded more than a million dollars in damages. The Court of Appeals affirmed the verdict and the case was appealed to the Texas Supreme Court.
Spoliation rules and laws vary greatly from state to state. As in most states, Texas does not recognize an independent cause of action for intentional or negligent spoliation of evidence by parties to litigation. Trevino v. Ortega, 969 S.W.2d 950, 951 (Tex. 1998). A spoliation instruction is an instruction given to the jury outlining permissible inferences they may make against a party who has lost, altered, or destroyed evidence. Brewer v. Dowling, 862 S.W.2d 156, 159 (Tex. App. – Fort Worth 1993), writ denied. A party who has deliberately destroyed evidence is presumed to have done so because the evidence was unfavorable to its case.
The Trevino Test. A trial judge has broad discretion in determining whether to provide a jury with a spoliation presumption instruction. Trevino, supra; Texas Elec. Co-Op. v. Dillard, 171 S.W.3d 201, 208-209 (Tex. App. – Tyler 2005). A party doesn’t need to take extraordinary measures to preserve evidence, but it must exercise reasonable care in preserving evidence. Trevino, 969 S.W.2d at 951. A court may determine there is no breach of the duty to preserve evidence if the alleged spoliator offers an “innocent explanation,” such as the evidence was destroyed in an ordinary course of business. Id. Finally, the party alleging spoliation is not entitled to remedy unless it establishes prejudice. Id. Before a spoliation instruction can be submitted to a jury, the court must determine:
- whether there was a duty to preserve evidence;
- whether the alleged spoliator breached that duty, either negligently or intentionally; and
- whether spoliation prejudiced the non-spoliator’s ability to present its case or defense.
In evaluating prejudice, the court should take into consideration the relevance of the evidence, whether other evidence is available, and whether the evidence supported the key issues in the case.
The intentional spoliation of evidence relevant to a cause raises a presumption the evidence would have been unfavorable to the spoliators. Id. This presumption can be rebutted by evidence that the spoliation was not a result of fraudulent intent and does not apply when documents are merely lost. Cresthaven Nursing Residence v. Freeman, 2003 WL 253283, 8, 10 (Tex. Ct. App., Feb. 5, 2003).
The Johnson Test. The presumption does not arise unless the party responsible for destruction of evidence had a duty to preserve it. Wal-Mart Stores, Inc. v. Johnson, 106 S.W.3d 718, 722 (Tex. 2003). In Johnson, the Court noted that spoliation instructions have been given either for (1) a party’s deliberate destruction of relevant evidence; or (2) a party’s failure to produce relevant evidence or explain its non-production. However, the Court noted that such a duty to preserve evidence 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.” Id.
In Brookshire Brothers, the Supreme Court overturned the Court of Appeals, and held that:
- The trial court, rather than the jury, must determine whether a party spoliated evidence and, if so, impose the appropriate remedy;
- The remedy for spoliation of evidence must have a direct relationship to the act of spoliation and may not be excessive;
- A trial court’s finding of intentional spoliation of evidence, together with a conclusion that a lesser remedy would be insufficient to ameliorate the prejudice, is generally a necessary predicate to the proper submission of a spoliation instruction to the jury;
- In the rare circumstance that an act of spoliation, although merely negligent, so prejudices the non-spoliating party that it is irreparably deprived of having any meaningful ability to present a claim or defense, a court has discretion to remedy such prejudice with a spoliation instruction;
- The operator did not intentionally conceal or destroy relevant evidence, as would generally be required for a spoliation instruction, by preserving only eight minutes of surveillance video;
- Any negligent failure by the operator to preserve more than eight minutes of footage did not irreparably deprive the customer of any meaningful ability to present his claim so as to permit a spoliation instruction;
- Evidence of circumstances surrounding the failure to preserve more than eight minutes of surveillance footage was inadmissible, to the extent that such evidence was unrelated to the merits and served principally to highlight the operator’s culpability;
- The improper submission of spoliation instruction probably caused rendition of an improper judgment in customer’s favor; and
- The finding that the operator had constructive notice of dangerous condition was supported by more than a scintilla of evidence.
The Court further clarified spoliation law in Texas. It is the responsibility of the trial court (not the jury) to decide whether there is spoliation. In order to support spoliation:
- The party alleging same must show that the non-producing party has a duty to preserve evidence under the Johnson test;
- The party alleging same must show that the non-producing party breached its duty to preserve material and relevant evidence, which occurs when it fails to exercise reasonable care to preserve that evidence;
- The breach of duty may be either intentional or unintentional; and
- There must be a direct relationship between the remedy and the act of spoliation.
It cannot be excessive and must be “proportionate when weighing the culpability of the spoliating party and the prejudice to the non-spoliating party.” To determine prejudice, the Supreme Court confirmed that the following factors must be considered:
- The relevance of the spoliated evidence to the main issues in the case;
- The harmful or helpful effect of the evidence on the underlying case of either party; and
- Whether the spoliated evidence was cumulative of other evidence.
If the spoliation is intentional, that might be enough to support a finding that the evidence is both relevant and harmful to the spoliating party. Negligent spoliation would not be sufficient to determine this. Finally, a party may present indirect evidence to try to establish what the missing evidence would have shown, but the jury may not hear evidence unrelated to the merits of the case that tends to simply highlight the spoliating party’s breach and culpability.
The Supreme Court in Aldridge crafted a new set of rules and standards for spoliation claims in Texas. While the Court announced that negligent spoliation exists only when the spoliator’s actions “irreparably prevents” the other side from having an opportunity to present a claim or position, it failed to clearly set forth standards and rules with regard to what might be considered “irreparable prevention.” The decision also raises important questions regarding “willful blindness”, where the spoliator doesn’t affirmatively destroy evidence, but passively allows its destruction. In such cases, the Court seems to claim that the spoliator must have a subjective purpose to destroy the evidence. Parties cannot hide beyond unreasonable limited duration time limits after which evidence is destroyed. If they suspect that the evidence is significant to the case, they have a duty to preserve it.
For a chart depicting the law of spoliation in all 50 states, see HERE.
If you should have any questions regarding this article or subrogation in general, please contact Gary Wickert at [email protected].