Opinion
05-20-00542-CV
01-25-2023
CAROLYN WAID, Appellant v. TARGET CORPORATION, Appellee
On Appeal from the County Court at Law No. 5 Dallas County, Texas Trial Court Cause No. CC-18-00729-E
Before Justices Pedersen, III, Goldstein, and Smith
MEMORANDUM OPINION
BILL PEDERSEN, III JUSTICE
This is a premises liability case. Carolyn Waid appeals the trial court's February 20, 2020 Final Summary Judgment, challenging both (1) the trial court's denial of her objections to Target Corporation's motion for summary judgment, and (2) the court's granting of that motion. Waid also challenges the trial court's ruling denying her post-judgment request for a finding of spoliation. We affirm.
Background
On September 5, 2017, Waid entered the Target store at CityPlace in Dallas, Texas at approximately 1:30 in the afternoon. The store had been open for customers since early morning. Waid was walking through the main aisle at the front of the store, opposite the checkout lanes, when she slipped and fell. Waid lay on the spot where she fell until paramedics were able to place her on a stretcher and gurney and take her from the store. Waid suffered severe injuries to her left knee, including a broken patella.
Waid's fall was captured on the store's surveillance video. Target personnel inspected the area after Waid fell, took a number of photographs of the area, and created a Guest Incident Report.
Waid sued Target on February 8, 2018, initially pleading that she fell because "a slippery substance was left on the floor in [Target's] Store." When a subsequent pleading included Waid's increased estimate of the amount in controversy, from approximately $75,000 to "up to $1,000,000," Target removed the case to federal court. After approximately one year in the federal court system, Waid joined Prestige Maintenance USA (Prestige) and Diversey Inc. (Diversey), and the case was remanded to state court based on a lack of diversity.
Prestige had contracted with Target to maintain the store's floors, and it applied floor products sold by Diversey to Target's floors. When the case returned to state court, Waid pleaded that she fell because:
Defendant Diversey's floor finish was a defective floor product which was known, or should have been known, by all Defendants to pose an unreasonable risk of injury to Target customers, and was over-applied to the vinyl tile floor in Target's store in order to achieve a "glossy" finish that resulted an unreasonable risk of slipping and falling, which
is precisely what happened to [Waid] on the occasion in question. Further, Defendant Target's premises contained insufficient maintenance to permit a shopper, such as Plaintiff, to avoid the existence of the unreasonably dangerous condition that existed.
Over the following months, the parties exchanged written discovery and took depositions. Waid non-suited Diversey in August 2019, and amended her pleadings a number of times.
At the time that Target filed its Motion for Summary Judgment (the Motion), Waid's live pleading alleged that she fell because:
floor products which were known, or should have been known, by all Defendants to pose an unreasonable risk of injury to Target customers if improperly applied; was over-applied and/or was applied inconsistently and/or was otherwise improperly applied to the tile floor in Target's store in order to achieve a "wet", shiny, and "glossy" finish that resulted [in] an unreasonable risk of slipping and falling, which is precisely what happened to Plaintiff on the occasion in question.
Waid filed her response to the Motion (the Response). Both parties filed objections to the other party's summary judgment evidence; the trial court did not rule on any of the objections. After hearing the Motion, the trial court signed an interlocutory order granting it. Shortly thereafter, Waid dismissed her claims against Prestige, and the trial court signed a second order (the Final Summary Judgment), making the judgment final.
Waid filed her Motion to Modify Judgment and for Ruling, seeking a ruling on her evidentiary objections and a ruling that Target had committed spoliation. Waid then filed her Motion for Rehearing, to Reconsider and Vacate the Order Granting Defendant's Motion for Summary Judgment and for New Trial, and a Supplemental version of that motion. The trial court signed its Final Order denying all post-judgment relief. This appeal followed.
Discussion
The Summary Judgment Motion
In her first issue, Waid contends that questions of material fact preclude summary judgment in this case. Target's Motion was both traditional and no-evidence in nature; neither the trial court's Interlocutory Order nor the Final Summary Judgment Order specified the court's ground for granting the Motion. When a trial court's order granting summary judgment does not specify the grounds relied upon, the reviewing court must affirm summary judgment if any of the summary judgment grounds are meritorious. FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872 (Tex. 2000). When both no-evidence and traditional summary judgment motions are filed, we generally address the no-evidence motion first. See Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004).
We review a no-evidence summary judgment under the same legal sufficiency standard used to review a directed verdict. Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 310 (Tex. 2009). We consider the evidence proffered by the nonmovant in the light most favorable to her. Wal-Mart Stores, Inc. v. Rodriguez, 92 S.W.3d 502, 506 (Tex. 2002). But "[w]hen the evidence offered to prove a vital fact is so weak as to do no more than create a mere surmise or suspicion of its existence, the evidence is no more than a scintilla and, in legal effect, is no evidence." King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 755 (Tex. 2003) (quoting Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex.1983)). To defeat a no-evidence summary judgment, the nonmovant is required to produce evidence that raises a genuine issue of material fact on each challenged element of its claim. Gish, 286 S.W.3d at 310; see also Tex. R. Civ. P. 166a(i).
A premises liability plaintiff must prove that (1) the defendant had actual or constructive knowledge of some condition on the premises; (2) the condition posed an unreasonable risk of harm to the plaintiff; (3) the defendant did not exercise reasonable care to reduce or to eliminate the risk; and (4) the defendant's failure to use such care proximately caused the plaintiff's personal injuries. United Scaffolding, Inc. v. Levine, 537 S.W.3d 463, 471 (Tex. 2017) (citing Corbin v. Safeway Stores, Inc., 648 S.W.2d 292, 296 (Tex. 1983)). In this proceeding, Target's Motion challenged Waid to bring forward evidence showing a material issue of fact on the first two elements of her claim, i.e., that Target had actual or constructive knowledge of a condition that posed an unreasonable risk of harm to Waid. Waid's summary judgment evidence included discovery responses from the defendants and excerpts from a number of depositions.
Waid's specific evidence included: a January 30, 2020 letter from Michael G. Lee to D. Bradley Kizzia, containing Target's supplemental discovery responses; a January 31, 2020 letter between the same attorneys providing more detail on January 30 responses; Target's Objections and Answers to Plaintiff's First Set of Interrogatories; Target's Objections and Answers to Plaintiff's Second Set of Interrogatories; excerpts from the Oral Deposition of Douglas Henry Mitch, Jr.; Defendant Prestige Maintenance's First Supplemental Responses to All Parties' Requests for Disclosure; Excerpts from the Oral Deposition of Diversey, Inc., through its designated representative, Peter Teska; Defendant Prestige Maintenance's Objections and Responses to Defendant Diversey Inc.'s First Set of Interrogatories; Excerpts from the Oral Deposition of John Cudjo; Excerpts from the Oral Deposition of Carolyn Waid; the Affidavit of Carolyn Waid; and the Affidavit of Nathanial Pagan (Ms. Waid's son). Waid also presented the following materials: printouts of eight reported opinions in cases that involve a Target entity as defendant; a Philadelphia law firm's promotional discussion of a slip-and-fall case against Target; a 2006 article titled "Why walkers slip: Shine is not a reliable cue," published in Perception & Psychophysics (reporting on series of four studies authors investigated concerning visual cues walkers use to predict slippery ground and their reliability in low-friction conditions); and a "Miami Personal Injury Attorney Blog" entry discussing Target's floors. We conclude that none of these materials provided evidence relevant to the challenged elements of Waid's claim.
We begin our analysis with Waid's arguments contending that an unreasonably dangerous condition existed at the CityPlace Target and caused her to fall. "A condition is unreasonably dangerous if 'there is a sufficient probability of a harmful event occurring that a reasonably prudent person would have foreseen it or some similar event as likely to happen.'" United Supermarkets, LLC v. McIntire, 646 S.W.3d 800, 803 (Tex. 2022) (quoting Seideneck v. Cal Bayreuther Assocs., 451 S.W.2d 752, 754 (Tex. 1970)). Waid made two arguments in her Response on this issue: Target's floor shine and store lighting standards created an unreasonably dangerous combination, and Target's maintenance of its store created an unreasonably dangerous condition. On appeal, Waid characterizes her arguments somewhat differently, alleging that (1) Target's dangerous application of floor product caused an unreasonably dangerous condition, and (2) the dangerous floor shine and lighting standards caused such a condition. We address these arguments in turn.
(1) Dangerous Application of Floor Product
Waid begins this portion of her brief with a discussion of Corbin v. Safeway Stores, Inc. As Waid acknowledges, that case involved a plaintiff who slipped and fell on one or more grapes that had fallen from a self-serve display. Id. at 294. The store kept "large non-skid, non-slip walk-off mats" in front of the display because it knew "that customers frequently either knock grapes off their stems or drop them, creating a great risk that someone will subsequently step on a slippery grape peel and fall on the linoleum floor." Id. Corbin's evidence, however, showed that when he fell, there was no mat in front of the display. Id. The supreme court concluded that a jury question existed-even if Safeway was not aware that grapes had fallen on the floor at the time Corbin slipped-when "evidence that a proximate cause of the fall was the storeowner's failure to use reasonable care to protect its customers from the known and unusually high risks accompanying customer usage of a self-service display of goods." Id. at 295.
We conclude Corbin is not helpful in determining whether an unreasonably dangerous condition existed in Waid's case. In Corbin, the plaintiff knew exactly what had caused his fall: the smashed grapes were on the floor. Moreover, the store was aware that such a condition could cause similar falls in its store and had taken measures to protect customers from falling, but then it had failed to follow the procedure when it would have protected Corbin. The court's issue in Corbin was whether Safeway had to know that grapes were on the floor when and where Corbin fell, or whether Safeway had sufficient notice of the risk because it was generally aware of the risk of grapes falling from the self-service bin. The court concluded the latter was the proper standard. Id. at 296 ("Corbin's right to recover from Safeway depends on his showing Safeway's knowledge of the foreseeable harm of some course of conduct or method of operation."). Corbin's case, thus, involved the issue of notice, not identification of a dangerous condition. The question before us in the first instance is whether Waid presented evidence of a genuine issue of material fact about a dangerous condition in the Target store when and where she fell.
Waid cites generally more than once to her forty pages of opinion printouts, none of which involved the CityPlace store. We discern no evidence in those cases that a dangerous condition existed in the CityPlace store.
Waid makes three arguments, contending that she has offered more than a scintilla of evidence that a dangerous condition existed "caused by misapplication or misuse of the floor product." She relies first on deposition testimony of Peter Teska, the representative of former defendant Diversey, which sold its floor products for application by Prestige. Waid's Response offered brief excerpts of Teska's deposition. One included a hypothetical posed by Waid's counsel, asking Teska to describe "the most likely negative outcome" if Prestige had applied the coats of polish too quickly, without waiting for each layer to dry properly. Teska stated that a condition known as "blooming" was "the most likely negative consequence of applying coats too fast." He testified that he did not see evidence of blooming on the Target floor in the exhibits he was shown. He added that "blooming wouldn't have to occur, but it would be very likely" in the hypothetical situation described. He testified that when blooming did occur, the floor surface could be "rather tacky or gummy" until it dried completely, at which point it would cease to be gummy or tacky. Contrary to Waid's summary of his testimony, Teska never said the floor could become slippery if blooming were to occur.
We are not persuaded that the Teska testimony amounts to any evidence supporting Waid's claim. Indeed, in this argument Waid asks us to rely on the possible existence of an unobserved condition, which would-if it did exist-fail to cause the slick, slippery condition that Waid described on the floor. We conclude the Teska testimony does not raise an issue of material fact on the existence of a dangerous condition.
Waid concedes that this blooming issue would most likely need to be presented by way of expert testimony, but she offered none in her Response to the Motion.
Next, Waid contends that there is conflicting evidence as to whether Target employees physically inspected the floor after she fell. Waid's own summary judgment evidence includes deposition testimony from John Cudjo, the Target team leader on duty the day Waid fell. Cudjo first explained his normal practice if a guest should fall:
[I]n that situation I either have to find - if it was liquid I would have to get a paper towel and clean it up. If it's something clear, my job because I'm filling out this report is to find what the source of the item is. If you say it's something oily, then it's my job to find out what - where that
came from. But - and you know, normally in situations like that there's a bottle of some type next to where a guest might have fallen, so I have whatever it is. But if there's nothing there then all I can do is inspect the area just to make sure the next guest that walks through doesn't get hurt.
Then Cudjo testified that, after Waid fell, "I looked for something on the floor. And like I said, I ran my hand across the floor looking for an item or looking for anything that might have caused a slip, and I could not find anything to clean." Waid contends that the video Target produced in discovery and as part of its summary judgment evidence conflicts with Cudjo's testimony because, she contends, no one in the video touches the floor after Waid falls. When considering a no-evidence motion, we may only consider the movant's traditional-motion evidence if it creates a fact issue. See Binur v. Jacobo, 135 S.W.3d 646, 651 (Tex. 2004). Here, the video continues for nearly thirty minutes after Waid's fall. But it ends as Waid is placed on a stretcher in the spot where she fell. Cudjo testified specifically that he checked the floor after Waid was moved; thus, the video does not contradict his testimony. Nor has Waid offered any testimony that contradicts Cudjo's testimony directly (asserting that he did not inspect the floor) or indirectly (identifying the presence of anything on the floor that could have caused it to be slippery).
Waid objected to the video as summary judgment evidence and reasserts those objections in this Court. We will assume the video is properly part of the summary judgment record for the limited purpose of this discussion.
A camera at the store exit then shows Waid being taken out of the store on a gurney by paramedics.
Finally, Waid encourages us to rely on a "learned treatise" that, she summarizes, "explains that some floor products interact with certain shoes in different manners." We express no opinion on the reliability of the article cited. But it is clear that even if we assume that the quoted statement is true, it is no evidence that Target's floor products interacted with Waid's shoes and caused her to fall in the CityPlace Target. Waid offered no such evidence.
The article cited indicates it was published in 2006 in Perception & Psychophysics. We have been able to learn that this publication was renamed in 2009 as Attention, Perception, & Psychophysics. Its website identifies it as "an official journal of the Psychonomic Society. It spans all areas of research in sensory processes, perception, attention, and psychophysics."
We conclude that Waid's evidence of "misapplication or misuse of the floor product" is no more than suspicion and surmise and does not create a genuine issue of material fact on the existence of an unreasonably dangerous condition. See King Ranch, Inc., 118 S.W.3d at 755.
(2) Floor shine and lighting standards
Waid also argues that Target's standards for floor shine and light brightness reduce visibility for its guests and create a dangerous condition. Here, Waid relies on a specific case brought against Target in Florida. In Target Corp. v. Kaufer, 244 So.3d 315, 316 (Fla. Dist. Ct. App. 2018), Kaufer slipped on liquid laundry detergent on the floor while shopping. He blamed Target's "policy of having a clear very high gloss, wet-look finish on its floors in its stores which caused the bright overhead lights to reflect off the tile which created a dangerous condition by causing spills of clear and translucent liquids to be undetectable." Id. The court concluded that Target was entitled to a directed verdict in the case because the presence of the detergent was not a result of Target's floor-and-lighting policy; it was the result of another shopper's spilling detergent on the floor. Id. at 217. But even if the Florida court had found Kaufer's argument persuasive, it could not assist Waid, because there was no evidence of anything on the CityPlace floor that could have been rendered invisible to Waid by bright lighting and shiny floors.
Waid also relies on a second case, purportedly from Pennsylvania. She does not provide a caption or citation to the opinion. Instead, she relies upon a blog entry, but the blog does not identify the case either. We have been unable to locate the opinion from the facts discussed; as a result, we cannot consider Waid's argument based upon that case.
Waid has failed to offer evidence raising a genuine issue of material fact on her theory that Target's policies involving lighting and floor shine created an unreasonably dangerous condition.
In the end, we conclude that Waid has raised no more than a suspicion that an unreasonably dangerous condition existed on Target's floor and caused her to fall. That is insufficient to survive a no-evidence motion for summary judgment. See King Ranch, Inc., 118 S.W.3d at 755. As our supreme court has said, "some suspicion linked to other suspicion produces only more suspicion, which is not the same as some evidence." Id.
We conclude the trial court did not err in granting Target's Motion. We overrule Waid's first issue.
Because we affirm the no-evidence portion of Target's Motion on this element, we need not address whether Waid produced evidence that Target was or should have been aware of the alleged condition. Nor do we address the traditional portion of Target's Motion. Likewise, we need not address Waid's second issue, which challenged Target's summary judgment evidence.
Spoliation
In her third issue, Waid contends that the trial court erred in denying her request for a finding of spoliation. "To conclude that a party spoliated evidence, the court must find that (1) the spoliating party had a duty to reasonably preserve evidence, and (2) the party intentionally or negligently breached that duty by failing to do so." Brookshire Bros., Ltd. v. Aldridge, 438 S.W.3d 9, 14 (Tex. 2014). The party alleging spoliation bears the burden of establishing that the nonproducing party had a duty to preserve the evidence at issue. Id. at 19. And if a duty to preserve evidence existed, the party seeking a remedy for spoliation must demonstrate the other party intentionally or negligently breached its duty to preserve the relevant evidence. Id.
As a threshold matter, Target urges us to reject the spoliation issue out of hand because Waid failed to raise it in her response to the Motion and fully briefed it only after the trial court's Final Judgment. Target concedes that Waid briefly "mentioned" the possibility of spoliation in a motion to compel production of materials from Target. We conclude that Waid's spoliation issue is-to a degree-premised upon a discovery complaint, so that her raising the issue in the context of compelling discovery was reasonable. We will consider her issue timely preserved.
The discovery issue at the root of Waid's spoliation issue is Target's purported failure to identify Douglas "Rusty" Mitch as a person with relevant knowledge. Waid contends that Mitch was identified during another deposition as "the person who had direct contact with Prestige's cleaning crew, and did so on a near-daily basis." According to Waid, Target's delay in disclosing Mitch meant she was not able to take his deposition until December 2019, when Mitch retained no memory of events on the date she fell.
Nevertheless, it is Mitch's deposition testimony that Waid relies upon for her spoliation claim. She asserts that Mitch identified "certain pieces of evidence and relevant witnesses that [Waid] did not know existed, that [Target] neither produced nor disclosed, and that allegedly were destroyed." As to the specific evidence she claims was destroyed, Waid identifies: "a binder full of work orders," "the Vendor Accountability Tool," "communications with Prestige," "relevant work orders," and "the relevant time periods from the FMOC system that kept track of Prestige's attendance." Before we undertake to determine when Target's duty to preserve evidence arose, or whether it acted negligently or intentionally, we must determine whether Waid has actually identified any evidence that was in fact destroyed by Target. Our review of the record confirms that she has not.
Unlike our earlier discussion, this issue is not limited by the summary judgment record of either party.
(1) The binder full of work orders
Beginning in her series of motions to compel, then in her post-judgment motion, and here in her brief, Waid expresses outrage that "an entire binder of reports about or relating to Prestige's floor care" was purportedly spoliated. However, Mitch's deposition testimony actually establishes something quite different. The reference to a binder arises when Waid's counsel is questioning Mitch about documents produced by Prestige that memorialize monthly walk-throughs with Mitch and a Prestige supervisor. In response to questions about the documents, Mitch testified that:
. There were no records of who he met with in these walk-throughs;
. He doesn't believe he ever sent the documents to anyone;
. If he did, he would have kept them in a binder;
. He doesn't have those binders anymore; "[t]hat far back, it would probably be trashed;"
. After the meeting he returned the form to Prestige;
. He doesn't remember keeping copies of the document;
. The binder was just a book he kept documents in for himself, not for Target;
. He kept the binder in his office at Target;
. If it was thrown away, he doesn't know who would have done it;
. They would have thrown a binder away if they didn't use it anymore or it was out out-of-date.
What Mitch testified to, then, is that he doesn't remember keeping the vendor walk-through forms, he doesn't believe he ever sent them to anyone, if he did, he would have probably kept them in a binder in his office, where he kept documents for his own reference. He did not testify that he kept work orders in a binder. Because the single conversation about a binder was limited to Prestige's documents that Mitch did not believe he maintained possession of, we conclude it provides no evidence of spoliation.
(2) Vendor Accountability Tool (VAT) records and relevant work orders
Target was ordered to produce (a) VAT records related to floor finishing at the CityPlace Target and (b) work orders for floor finishing corrections at the CityPlace Target, for the months of August and September 2017, after Waid filed her motion to compel. In response, Target responded that it had not identified any documents relevant to Waid's claim, but it did locate and produced seven work orders to Prestige that fell within the August-September time frame. None involved Prestige's application of the floor finishing product. For purposes of this issue, the production established that Target had in fact preserved the VAT system and arguably relevant work orders, i.e., work orders involving Prestige.
(3) Communications with Prestige and Matters from the FMOC system that kept track of Prestige's attendance
We are able to discern the "communications" Waid complains of here by tracing her record citations on the spoliation issue. Those citations reference a portion of the Mitch deposition in which her counsel posed two hypothetical situations.
. First, counsel asked "say hypothetically Prestige didn't show up to work one day, who would you report that to?" Mitch replied that he (or a team leader, if her were not working) would send a work order to headquarters using the FMOC computer system, or they would just call.
Mitch's response is the only evidentiary reference in our record to the FMOC, and Mitch did not testify that it "kept track of Prestige's attendance." Nor did he testify that any such work orders existed for the relevant time or that any such records were destroyed. Accordingly, the only inferences we can draw from non-production of such work orders is that either Prestige workers consistently showed up for work or that any failure to do so was handled by phone.
. Second, counsel asked "if there's a problem with Prestige's work, not that they didn't show up but that there's just a problem, who would you report that to?" Mitch testified that he would tell his immediate boss, and she would contact the Prestige boss; he didn't know how contact was made in 2017, but at the time of the deposition, the matter would be handled by phone.
This time, Mitch did not testify to knowledge of any documents at all, let alone testify that documents had been destroyed. We know that Target produced work orders identifying problems with Prestige work for August-September 2017; apparently that was how such problems were handled by Mitch's supervisor. There is no evidence that any such work orders were destroyed.
We conclude, based upon our review of the record, that Waid has produced no evidence that Target destroyed any relevant evidence. Accordingly, the trial court did not err in denying her request for a finding of spoliation. We overrule Waid's third issue.
Conclusion
We affirm the trial court's judgment.
JUDGMENT
In accordance with this Court's opinion of this date, the judgment of the trial court is AFFIRMED.
It is ORDERED that appellee Target Corporation recover its costs of this appeal from appellant Carolyn Waid.