Marshall v. Target Corp.

          ORDER

          Scott T. Varholak United States Magistrate Judge.

         This matter is before the Court on Plaintiff's Motion for Sanctions Due to Defendant's Spoliation of Evidence (the “Motion”). [#31] The Motion was referred to this Court. [#32] This Court has carefully considered the Motion and related briefing, the case file, and the applicable case law. The parties declined the Court's invitation for an evidentiary hearing [see #37], and the Court has determined that oral argument would not materially assist in the disposition of the Motion. For the following reasons, the Court DENIES the Motion.

         I. Background Facts

         On April 26, 2015, Plaintiff allegedly fell at a Target store in Aurora, Colorado (the “incident”). [#31-1 at 1] According to Plaintiff, it had been raining outside and she fell on a wet spot just inside the main entrance, where the carpet transitioned to tile. [Id.] Initially, Plaintiff did not believe the injury was serious and, as a result, she did not report the injury to any Target employees and continued shopping. [Id. at 2] The next day, however, Plaintiff's hand was still hurting. [Id.] Plaintiff went to an orthopedic surgeon and an x-ray revealed that Plaintiff had fractured her humerus. [Id.]

         On April 29, 2015, Plaintiff called Target to inform the store of the incident. [#31-2] The next day, she completed a guest incident report stating that she “slipped and fell” when “entering the store.” [Id.] Plaintiff listed the cause of the incident as “wet floor” and stated that she had a broken humerus. [Id.] A Target employee, Elizabeth Prince (formerly Holmquist) signed the guest incident report. [Id.; #35 at 3]

         After receiving the incident report, Ms. Prince began looking for video of the incident.^[1] [#35-1 at 21:9-12] She found a video of the entrance where the incident occurred. [Id. at 23:10-12] The video showed Plaintiff entering the store, but did not show her falling.^[2] [Id. at 23:13-20] There may also have been additional videos that could have shown Plaintiff shopping after the fall. [#31-6 at 40:6-10, 55:7-18]

         On May 1, 2015, Target notified Sedgwick Company, a third party claims adjuster that handles Target's premises liability claims, of Plaintiff's fall. [#31-3 at 4; #31 at 5] That same day, Plaintiff spoke with a company representative, reporting that it was raining on the day of the incident and that water had been tracked onto the floor. [#31-3 at 6] She said that she slipped and fell where the carpet transitions to tile. [Id.] She further explained that her left humerus was fractured and that she was “making a claim.” [Id.]

         On May 6, 2015, Tyler Hammer, a representative of Sedgwick Company, called and left a voicemail for Plaintiff. [#31-3 at 6] Mr. Hammer also opened a new claim. [Id. at 7] In his claims notes, Mr. Hammer indicated that he needed to review any relevant video footage. [Id.] Five days later, Mr. Hammer spoke with Ms. Prince. [Id. at 8-10] Ms. Prince told Mr. Hammer that there was “video of the guest coming in, ” but that the “incident [was] just out of camera coverage.” [Id. at 10]

         On May 18, 2015, Mr. Hammer spoke with Plaintiff. [Id.] Plaintiff stated that she had a fractured humerus and fractured alna, and that surgery was possible. [Id. at 13] Plaintiff indicated that she thought Target was “a little responsible” and that she would be filing a claim against Target for medical expenses. [Id. at 14]

         On June 4, 2015, Mr. Hammer sent Ms. Prince an email requesting any video that Target had saved. [Id. at 3] In the email, Mr. Hammer stated that it would “be helpful to see what the front of the store looks like and how the area was set up for a rainy day.” [Id.] Ms. Prince responded that the video could not be retrieved because Target only saves its videos for thirty days. [Id. at 2] The video was apparently overwritten on or around May 26, 2015-approximately 30 days after the incident. [See #35-2 at 78:19-22, 82:7-13; #35-1 at 36:24-25, 37:1-7; #35-7]

         On March 20, 2017, Plaintiff filed the instant action in Arapahoe County District Court. [#3] Plaintiff's Complaint brings a single claim for relief pursuant to Colorado's premises liability statute, Colo. Rev. Stat. § 13-21-115. [Id. at 3-4] On April 10, 2017, Target removed the matter to this Court. [#1] Plaintiff filed the instant Motion on April 6, 2018 [#31], Defendant has responded [#35], and Plaintiff filed a reply [#36].

         II. Analysis

         “Destruction of evidence, or spoliation, is a discovery offense.” Gates Rubber Co. v. Bando Chem. Indus. Ltd., 167 F.R.D. 90, 101 (D. Colo. 1996). As part of their discovery obligation, “putative litigants have a duty to preserve documents that may be relevant to pending or imminent litigation.” Cache La Poudre Feeds, LLC v. Land O'Lakes, Inc., 244 F.R.D. 614, 620 (D. Colo. 2007). “Once it is established that a party's duty to preserve has been triggered, the inquiry into whether a party has honored its obligation to preserve evidence turns on reasonableness, which must be considered in the context of whether ‘what was done-or not done-was proportional to that case and consistent with clearly established applicable standards.'” Zbylski v. Douglas Cty. Sch. Dist., 154 F.Supp.3d 1146, 1164 (D. Colo. 2015) (quoting Rimkus Consulting Grp., Inc. v. Cammarata, 688 F.Supp.2d 598, 613 (S.D. Tex. 2010)).

         A court may impose sanctions for the destruction or loss of evidence. See Cache La Poudre, 244 F.R.D. at 620. “A spoliation sanction is proper where (1) a party has a duty to preserve evidence because [they] knew, or should have known, that litigation was imminent, and (2) the adverse party was prejudiced by the destruction of the evidence.” Burlington N. & Santa Fe Ry. Co. v. Grant, 505 F.3d 1013, 1032 (10th Cir. 2007). The two most important factors in determining spoliation sanctions are culpability of the offending party and actual prejudice to the other party. See Browder v. City of Albuquerque, 187 F.Supp.3d 1288, 1297 (D.N.M. 2016); HR Tech., Inc. v. Imura Int'l U.S.A., Inc., No. 08-2220-JWL, 2010 WL 4792388, at *2 (D. Kan. Nov. 17, 2010). To obtain an adverse inference instruction, the party claiming prejudice must also prove bad faith. Turner v. Pub. Serv. Co. of Colo., 563 F.3d 1136, 1149 (10th Cir. 2009); Fed.R.Civ.P. ...