Canton v. Kmart Corp., 2012 U.S. App. LEXIS 6372 (3d Cir. Mar. 29, 2012):

Appellant Patrice Canton ("Canton") appeals the District Court's February 12, 2010 Order granting Appellee's ("Kmart") motion for summary judgment. Canton filed a personal injury action against Kmart to recover economic damages resulting from her physical injuries received during a slip and fall accident. While shopping in the Kmart store at the Sunny Isle Shopping Center in St. Croix, Virgin Islands, Canton slipped on a clear, liquid substance on the floor in one of the aisles and was physically injured. She argues that the District Court improperly granted Kmart's summary judgment motion, because there is sufficient evidence to raise a genuine dispute as to a material fact regarding Kmart's actual and constructive knowledge of the dangerous condition that existed prior to her fall.***

While Canton was shopping in Kmart, she slipped on a clear, liquid substance that was on the floor. After Canton fell, she could see and feel the liquid substance. She also saw an open gallon bottle of Dial liquid soap on the shelf near the area where she slipped. Canton also noted that the cap was off and a quarter of the soap was missing from the bottle.

A second Kmart customer, Carolyn Roberts ("Roberts"), came to Canton's aid after she fell. Roberts saw a large amount of gel on the floor, and noticed a large bottle of Dial liquid soap on the shelf with the cap half way off. While standing in the area immediately after Canton fell, Roberts noted that she heard a Kmart employee admit that someone told her about the spill but that she [the employee] failed to respond to the spill right away. ***

The first Kmart employee on the scene, (not the employee Roberts purportedly overheard) Valine JeanBaptiste ("JeanBaptiste"), observed a long skid mark on the floor, and also observed that the liquid on the floor was from a large bottle of liquid soap. She also noted that the liquid soap bottle was open, on its side, hanging off of the shelf, and that the cap was unscrewed. ***

After the fall, another Kmart employee, ("Tony") took photographs of the area where Canton slipped and fell. Kmart's policy requires that all photos are labeled, attached to the incident report and sent to the Kmart Customer Incident Center. Kmart admitted, through its representatives, that photographs had been taken, and that there was video surveillance of the accident. However, neither the photographs nor the videotape were preserved for trial.

In June 2009, after suit had been filed, Canton filed a Motion for Sanctions for Spoliation of Evidence, because Kmart had failed to retain the surveillance material. Specifically, Canton sought the District Judge's sanction of Kmart's conduct by permitting an inference of spoliation at trial. The District Judge granted the motion regarding the photographs, but denied the motion as to the video surveillance, determining that, based on the testimony of a Kmart employee on duty at the time of the alleged incident, "and in the absence of any affirmative evidence provided by Plaintiff that surveillance video actually existed of the alleged accident, the Court finds that no surveillance videotape existed such that Defendant had a duty to maintain it." (J. App. 4.) The District Judge ordered that a jury instruction, noting that the photographs would have provided evidence that the spill existed for a sufficient period of time to have given Kmart notice before Canton fell, was appropriate.***

Canton contends that Kmart breached its duty to protect an invitee from harm while on Kmart's property. To establish a breach of duty, Canton must prove that Kmart "had either direct [actual] or constructive notice of the foreign substance on the floor as a potentially dangerous condition." ***

Canton argues that constructive notice is evidenced by: (1) the spoliation ruling***. First, Canton relies on the District Court's grant of her motion for a spoliation inference based on Kmart's inability to produce the photographs as evidence of the spill and fall.

Spoliation occurs when evidence is destroyed or altered, or when a party fails to preserve evidence in instances where litigation is pending or reasonably foreseeable.

See Micron Technology, Inc. v. Rambus Inc., 645 F.3d 1311, 1320 (Fed. Cir. 2011).

Canton states that the spoliation ruling should have prevented the District Court from granting Kmart's motion for summary judgment. While it is true that the lack of photographic evidence is a concern in this case, it is also true that a jury may have viewed the spoliation inference as an indication of Kmart's possible liability. However, such an inference is not dispositive on the issue of constructive notice.

"When the contents of a document are relevant to an issue in a case, the trier of fact generally may receive the fact of the document's nonproduction or destruction as evidence that the party that has prevented production did so out of the well-founded fear that the contents would harm him." Bull v. UPS, 665 F.3d 68 (3d Cir. 2012) (quoting Brewer v. Quaker State Oil Refining Corp., 72 F.3d 326, 334 (3d Cir. 1995)). Here, although the missing photographs are important, they do not mandate that the grant of summary judgment be jettisoned. See Byrnie v. Town of Cromwell Bd. of Educ., 243 F.3d 93, 107 (2d Cir. 2001) (where the Court of Appeals found that the missing evidence had potential relevance, but noted that the relevance would be "minimal"). The photographic evidence here would be cumulative. Kmart does not argue that the spill did not occur, nor does it contest the facts of the spill, as presented. The photographs would not contribute to create a genuine dispute as to a material fact. There is no error regarding the District Court's spoliation ruling.