United States District Court, D. Colorado
T. Varholak United States Magistrate Judge.
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.
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.
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]
receiving the incident report, Ms. Prince began looking for
video of the incident. [#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. [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,
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
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]
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]
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,
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].
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.
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. ...