Opinion
No. 35347-4-II.
January 8, 2008.
Appeal from a judgment of the Superior Court for Pierce County, No. 05-2-08504-1, Sandra B. Bobrick, J. Pro Tem., entered August 17, 2006.
Affirmed by unpublished opinion per Bridgewater, J., concurred in by Hunt and Quinn-Brintnall, JJ.
Steve Cottrell filed a complaint for damages against Bahram Shahrvini, stemming from an incident occurring at Shahrvini's 7-Eleven store. Cottrell appeals from the trial court's rulings that prohibited him from presenting his allegations of spoliation to the jury. We affirm.
Steve Cottrell is a frequent customer of the 7-Eleven convenience store near his home in Puyallup, Washington. He shops there because it is well maintained and clean. Shahrvini has been the franchisee of the 7-Eleven since August 2002.
Shortly after taking over the 7-Eleven store, Shahrvini noticed that the white tiles on the floor showed dirt. To remedy this, Shahrvini instigated a mopping policy in the store. After using a wet mop on a section of the floor, an employee was to apply a dry mop. According to Shahrvini, this procedure cleaned the floor, reduced footprints on the white tiles, and dried the floors more quickly. When two employees were available, one employee would "wet mop" while the other employee would follow with the "dry mop." 2 RP at 128, 146. But when only one employee was available, that employee would complete both the wet mopping and dry mopping.
Due to the frequent wet and dry mopping, Shahrvini instituted a policy that six "caution" signs permanently be placed around the store. 2 RP at 141; see Ex. 1, 6-13. On occasion, employees moved the signs during the mopping process or if there was a spill at another section of the floor. One of the caution signs was permanently placed inside the front door, near the floor mat. Others were permanently placed in the main aisle of the store. Also, one caution sign was permanently placed in the newspaper aisle.
On December 2, 2004, Beant Kaur, Shahrvini's employee at the 7-Eleven, had just finished dry mopping the front area of the store. Although she moved the "caution" sign while she was mopping, she replaced it after she finished. 2 RP at 141.
Shortly after Kaur replaced the caution sign and returned to her other tasks, Cottrell entered the store to buy a newspaper. He turned immediately to the right, down the newspaper aisle. Cottrell grabbed a newspaper and turned back toward the cash register. Moments later, Cottrell slipped and fell in the newspaper aisle. Cottrell testified that he did not notice the "caution" sign positioned near head of the newspaper aisle. 2 RP at 201-02.
Upon recovering from the fall, Cottrell paced back and forth, examining the floor. He then paid for his paper and left the store. Upon leaving the store, Cottrell drove home and had his wife drive him to the hospital. The following week, Cottrell underwent surgery to repair his fractured wrist. As a result of his injury, Cottrell missed four weeks of work. He also was put on light-duty work, precluding overtime opportunities, and endured months of physical therapy.
Apparently no one witnessed Cottrell's fall, but the 7-Eleven was equipped with six surveillance cameras. The purpose of the video surveillance is to prevent shoplifting and employee theft. As such, four cameras are focused on the cash registers and backroom. One camera is focused on the beer aisle. And one camera is focused on the main aisle, which is the camera that videoed Cottrell's fall. The video system automatically records over itself after seven days.
None of the video cameras are focused on the newspaper aisle because according to Shahrvini, "people do not usually steal newspapers." CP at 128.
The day after his fall, Cottrell returned to the 7-Eleven and threatened a lawsuit. He did not ask to see the video surveillance at that time. Upon Cottrell's threat, Shahrvini called the 7-Eleven claims personnel to report the incident. The claims personnel advised Shahrvini to preserve several minutes before and several minutes of video after the fall. This is precisely what Shahrvini did.
The preserved portion of the video shows an employee dry mopping the floor and returning the "caution" sign to the spot where Cottrell fell. Ex. 1. After the fall, the video also shows Shahrvini dry mopping the area where Cottrell fell.
Both Cottrell and Shahrvini filed pre-trial motions concerning spoliation. Cottrell argued that Shahrvini committed spoliation by destroying evidence, i.e., not preserving additional portions of the video. Shahrvini asserted no spoliation and that the court should not allow Cottrell to make arguments under that legal theory. In addition, Shahrvini argued that under ER 411, the trial court should not allow Cottrell to ask about insurance or indemnity. Before trial, the trial court granted Shahrvini's motions in limine concerning spoliation and exclusion of insurance and denied Cottrell's motion in limine regarding spoliation.
Under the Franchisee Agreement between Shahrvini and 7-Eleven, Inc., 7-Eleven, Inc. indemnifies Shahrvini for certain losses, if any. The contract of indemnity is not insurance. It does, however, act to cover certain potential liabilities.
The parties re-visited the spoliation issue after opening statements. The trial court made a limited and specific ruling that Cottrell could not ask why Shahrvini preserved the amount of video he did because it would lead to his discussion with 7-Eleven, Inc. claims personnel. It explained that it did not want the issues of insurance evidence or indemnity to come before the jury. The trial court also made clear that its ruling did not prohibit Cottrell from asking other questions, subject to the motion in limine. For example, the trial court stated that Cottrell could have asked what Shahrvini saw when he re-wound the video to preserve the four minutes of footage. In a related matter, the trial court refused to offer Cottrell's proposed jury instructions regarding spoliation of evidence and the parties' respective burdens of proof.
A six-person jury returned a verdict for the defense. After entry of the judgment, Cottrell filed a motion for new trial under CR 59(a), on the basis of the spoliation issues. The trial court denied the motion and Cottrell timely appealed.
ANALYSIS
Cottrell's assignments of error all stem from the trial court's decision that Shahrvini did not commit spoliation of the videotape evidence of his fall in the 7-Eleven. To be precise, Cottrell contends the trial court erred when it found no spoliation of the evidence and, thus, erroneously granted Shahrvini's motion in limine regarding the videotape. Cottrell also contends the trial court erred when it refused to offer his jury instructions about the destruction of the videotape. And finally, Cottrell contends that the trial court erred when it denied his motion for reconsideration based on its initial decision regarding spoliation. Cottrell's arguments are unpersuasive on all accounts.
We review the trial court's determination regarding spoliation for an abuse of discretion. Henderson v. Tyrrell, 80 Wn. App. 592, 604, 910 P.2d 522 (1996). A trial court abuses its discretion when its decision is manifestly unreasonable or based on untenable grounds or reasons. Will v. Frontier Contractors, Inc., 121 Wn. App. 119, 128, 89 P.3d 242 (2004), review denied, 153 Wn.2d 1008 (2005).
I. Spoliation
Spoliation is the intentional destruction of evidence. Black's Law Dictionary 1437 (8th ed. 2004). Washington courts treat spoliation as an evidentiary matter. To remedy spoliation, a court may apply a rebuttable presumption that shifts the burden of proof to the party who destroys or alters important evidence. Marshall v. Bally's Pacwest, Inc., 94 Wn. App. 372, 381, 972 P.2d 475 (1999); Henderson, 80 Wn. App. at 605.
In the leading Washington Supreme Court case on spoliation, Pier 67, Inc. v. King County, our Supreme Court held:
[W]here relevant evidence which would properly be a part of a case is within the control of a party whose interests it would naturally be to produce it and he fails to do so, without satisfactory explanation, the only inference which the finder of fact may draw is that such evidence would be unfavorable to him.
Pier 67, Inc., 89 Wn.2d 379, 385-86, 573 P.2d 2 (1977); see also Marshall, 94 Wn. App. at 381. In determining whether to apply the rebuttable presumption, a court considers "(1) the potential importance or relevance of the missing evidence; and (2) the culpability or fault of the adverse party." Marshall, 94 Wn. App. at 381 (quoting Henderson, 80 Wn. App. at 607.)
A. Importance of Evidence
Whether the missing evidence is important or relevant depends on the particular facts and circumstances of the case. Henderson, 80 Wn. App. at 607. In weighing the importance of evidence, a trial court considers whether the party was afforded adequate opportunity to examine the evidence. Henderson, 80 Wn. App. at 607.
In Henderson, the spoliation issue surrounded whether the trial court should have imposed discovery sanctions for the destruction of the automobile involved in the car accident. Henderson, 80 Wn. App. at 606. Division Three of this court noted that the investigative value of the car was unclear. Henderson, 80 Wn. App. at 608. Moreover, it emphasized that both parties had opportunity to examine the car within the two years after the accident and before the car was destroyed; but neither party retained experts to do so during that time. Henderson, 80 Wn. App. at 609. The Henderson court ultimately determined that the car's value as evidence was not imperative because it had questionable investigative value and numerous photographs of the car were available to the experts. Henderson, 80 Wn. App. at 609; see also Marshall, 94 Wn. App. at 382 (finding the plaintiff had ample opportunity to investigate the evidence at issue, a treadmill, but failed to request an inspection until four years after the incident).
Recently in Homeworks Construction, Inc. v. Wells, we declined to address the importance of the evidence at length in our spoliation analysis. Homeworks, 133 Wn. App. 892, 899, 138 P.3d 654 (2006). But we noted that, although the evidence was "undoubtedly important . . . [it] was by no means indispensable." Homeworks, 133 Wn. App. at 899. We also observed that several alternative sources existed to establish the information, including introducing opinion testimony at trial. Homeworks, 133 Wn. App. at 899.
Here, Cottrell also had alternative sources to establish the information he asserts was on the videotape. The trial court specifically did not prohibit the parties from questioning witnesses about the activities in the store before Cottrell entered it. In addition, the trial court did not limit Cottrell's questions to Shahrvini concerning what he saw when reviewing the video.
Moreover, Cottrell had an opportunity to ask Shahrvini to preserve a certain amount of videotape. After the day of the accident, Cottrell apparently returned to the store to threaten Shahrvini with a lawsuit, but he failed to ask about any video surveillance at that time. By the time Cottrell's sister, an attorney, contacted 7-Eleven a month later, it was outside of seven days of the incident and the video surveillance system had already automatically destroyed the unsaved portion of the video.
In addition, we question whether the unsaved portion of the video was even important or admissible for Cottrell's case. Cottrell suggests that the video would have shown Shahrvini's employee wet mopping the newspaper aisle and then failing to dry mop that portion of the store. But this is a speculative assertion. The preserved portion of the videotape shows that no other customers slipped or fell in the 7-Eleven. Furthermore, there was no video, preserved or not, of the newspaper aisle.
Therefore, under the facts of this case, combined with the questionable investigative value of the video itself, the trial court's decision was tenable. Nevertheless, we also analyze the party's culpability in determining whether spoliation of evidence occurred. See Henderson, 80 Wn. App. at 609.
B. Shahrvini's Culpability
Culpability turns on whether the party acted in bad faith or whether there is an innocent explanation for the destruction. Henderson, 80 Wn. App. at 609. Moreover, the party must do more than disregard the importance of the evidence; the party must also have a duty to preserve the evidence. Homeworks, 133 Wn. App. at 900; see also Henderson, 80 Wn. App. at 610. Here, there is no evidence that Shahrvini acted in bad faith and it is questionable whether he actually owed a duty to preserve more than four minutes of the videotape.
Cottrell does not contend that Shahrvini had a statutory, regulatory, or contractual duty to preserve more than four minutes of the videotape. Rather, he argues that Shahrvini had a general duty to preserve more than four minutes of the videotape because he knew Cottrell was considering a lawsuit. But Cottrell fails to cite any case law to support this conclusion.
Again, a party seeking a spoliation inference must show that the adverse party failed to preserve the evidence in bad faith. Henderson, 80 Wn. App. at 609 (holding that the reason for bad faith requirement derives from the evidentiary inference that spoliation creates; unless there was bad faith, there is no basis for "'the inference of consciousness of a weak cause.'") (quoting 2 John W. Strong, McCormick on Evidence § 265, at 191 (4th ed. 1992)). Cottrell has failed to establish Shahrvini acted in bad faith or lacked an innocent explanation for destroying the evidence.
At trial, the court considered Shahrvini's explanation as to why he only saved the two minutes before Cottrell's fall and two minutes after the fall. Shahrvini explained that after Cottrell threatened to file a lawsuit, he immediately called the claims representative at 7-Eleven. According to Shahrvini, the claims representative advised him to keep several minutes before and several minutes after the fall. As Shahrvini argues in his reply brief, there is no evidence (1) that the claims representative saw the videotape before dispensing advice; (2) that Shahrvini and the claims representative discussed the contents of the videotape; (3) that Shahrvini and the representative discussed the details of the incident; or (4) that Shahrvini and the claims representative decided to preserve four minutes of the video because it was advantageous to Shahrvini in the potential lawsuit.
The trial court specifically found that there was no evidence that Shahrvini was motivated to destroy damaging information thereby only saving four minutes of the surveillance tape. The facts, coupled with the lack of evidence that Shahrvini acted in bad faith and no clear evidence that the video would have been important or admissible at trial, support the trial court's conclusion that there was no spoliation.
II. The Jury was Properly Instructed
Jury instructions are sufficient if they allow counsel to argue their theories of the case, do not mislead the jury, and when taken as a whole, properly inform the jury of the law to be applied. Cox v. Spangler, 141 Wn.2d 431, 442, 5 P.3d 1265, 22 P.3d 791 (2000). However, we presume that a clear misstatement of the law is prejudicial. Keller v. City of Spokane, 146 Wn.2d 237, 249-50, 44 P.3d 845 (2002) (citing State v. Wanrow, 88 Wn.2d 221, 239, 559 P.2d 548 (1977)).
Cottrell argues that the trial court erred when it refused his proposed jury instructions. He argues that the trial court should have instructed the jurors that they were entitled to draw a negative inference from Shahrvini's destruction of evidence and that the trial court should have applied a rebuttable presumption, shifting the burden of proof to Shahrvini. Both arguments lack merit.
A. Proposed Jury Instruction 5
Cottrell asserts that his proposed jury instruction 5 was based on Pier 67, Inc., 89 Wn.2d 379. But he fails to provide any argument or statement as to how the instruction relates to Pier 67, Inc. Cottrell's proposed instruction read:
Defendant erased video evidence in this case before allowing plaintiff an opportunity to review it. As a result, you are to infer that: The destroyed video footage would have shown the area where plaintiff fell on December 2, 2004 was wet mopped that morning and the caution sign was not placed as claimed by defendant.
CP at 214. But this proposed jury instruction is improper because it attempts to instruct the jury to rule in his favor on disputed issues. Namely, the instruction asserts that Cottrell did not have opportunity to review the videotape, when in fact he did. The instruction also asserts that the floor was wet and the caution sign was not visible, which are factual issues. Therefore, the trial court did not err when it refused Cottrell's proposed jury instruction because it was an improper comment on the evidence. See Martin v. Kidwiler, 71 Wn.2d 47, 51, 426 P.2d 489 (1967) (stating the court should reject jury instructions that purport to resolve factual disputes in order to avoid constitutional error).
B. Proposed Jury Instruction 6
Cottrell also claims that the trial court erred when it refused its proposed jury instruction 6, which shifted the burden of proof to Shahrvini. But again, Cottrell is mistaken.
Cottrell's proposed jury instruction no. 6 read:
The plaintiff has the burden of proving that the negligence of the defendant was a proximate cause of the injury to the plaintiff.
The defendant has the burden of proving both of the following propositions:
First, that the floor at his 7-Eleven store was not wet, slippery and a hazard to customers on the date of plaintiff's injury.
Second, that the plaintiff acted, or failed to act, in one of the ways claimed by the defendant, and that in so acting or failing to act, the plaintiff was negligent;
Third, that the negligence of the plaintiff was a proximate cause of the plaintiff's own injuries and was therefore contributory negligence.
CP at 215. But there is no case law in Washington to support such a burden shifting instruction in a case of spoliation. Rather, the remedy in Washington for spoliation is to allow the adverse party to argue a negative inference at closing argument. See 5D Karl B. Tegland, Washington Practice: Courtroom Handbook On Washington Evidence, Rule 402, at 196-97 (2007). The Henderson court did imply the possibility of more severe remedies for spoliation, but it made clear that such sever remedies are typically predicated on a finding of bad faith. Henderson, 80 Wn. App. at 605, 609.
Here, the trial court found Shahrvini exercised no bad faith. As discussed above, the trial court acted within its discretion when it found no spoliation. It therefore follows that the court properly denied Cottrell's proposed instruction.
III. Denial of the Motion for Reconsideration
Cottrell also argues that the trial court denied him a fair trial because of its decisions regarding the spoliation issues. Again, Cottrell's argument lacks merit.
We will uphold the trial court's ruling on a motion for reconsideration under CR 59 unless the moving party shows there was a manifest abuse of discretion. Aluminum Co. of Am. v. Aetna Cas. Sur. Co., 140 Wn.2d 517, 537, 998 P.2d 856 (2000). Under CR 59(a)(7), a new trial may be granted if there is no evidence or reasonable inference from the evidence to justify the verdict.
As discussed above, the trial court did not abuse its discretion when it found no spoliation in this case. Therefore, the trial court did not err in denying Cottrell's motion for a new trial.
Affirmed.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
HUNT, J. QUINN-BRINTNALL, J., concur.