Gomez v. Stop & Shop Supermarket Co.., 670 F.3d 395 (1st Cir. 2012):

Plaintiff-appellant Armando Gomez, a Colombian national, sued defendant-appellee Stop & Shop Supermarket Co., after he slipped and fell while shopping.***

On June 19, 2007, the plaintiff entered the defendant's supermarket in North Andover, Massachusetts. While walking through the greeting card aisle, he felt a strange sensation -- as though he was unable to lift his right foot -- which caused him to lose his balance and topple to the floor. His wife, who was browsing nearby, noticed skid marks close to the site of the fall; but neither she nor anyone else witnessed the incident, observed anything wrong with the floor, or saw any foreign substance there. ***

He contended that a foreign substance on the floor caused his right foot to stick and provoked his fall. As a result, he accused the defendant of negligently maintaining the premises. ***

Upon consideration of the defendant's motion, the judge concluded that liability could not attach in the absence of facts indicating that the defendant reasonably should have foreseen the existence of a dangerous condition. ***

To be sure, the plaintiff's suggested inference -- that there must have been something sticky on the floor -- is a possible explanation. But a possible explanation is not a probable one. Liability in a premises case requires proof that a dangerous condition existed at the relevant time and place. No such proof can be gleaned from the plaintiff's account. Cf. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007) (discussing, in the motion to dismiss context, "the line between possibility and plausibility"). ***

This brings us to the plaintiff's contention that the defendant either destroyed or intentionally failed to gather evidence of its negligence. ***

The plaintiff's support for this suggestion is thin. To begin, he argues that a videotape of his accident must have existed, that the defendant must have destroyed it, and that, therefore, the defendant is chargeable with spoliation of evidence. The theoretical underpinnings for the spoliation doctrine are solid. "We have held with some regularity that a trier of fact may (but need not) infer from a party's obliteration of [evidence] relevant to a litigated issue that the contents of the [evidence] were unfavorable to that party." Testa v. Wal-Mart Stores, Inc., 144 F.3d 173, 177 (1st Cir. 1998). But cases are not decided on theory alone. Before an inference of spoliation may be drawn, its proponent must show at a bare minimum that the opposing party had notice of a potential claim and of the relevance to that claim of the destroyed evidence. See Blinzler v. Marriott Int'l, Inc., 81 F.3d 1148, 1158-59 (1st Cir. 1996). And there is an even more rudimentary requirement: the party urging that spoliation has occurred must show that there is evidence that has been spoiled (i.e., destroyed or not preserved). Tri-County Motors, Inc. v. Am. Suzuki Motor Corp., 494 F. Supp. 2d 161, 177 (E.D.N.Y. 2007).

The plaintiff falls woefully short of meeting these requirements. He relies on three facts to support his contention that the defendant destroyed a videotape of the accident: the defendant had a store security system that employed a series of cameras; the defendant had exclusive control over that system; and no videotape was produced during discovery. These facts are true but, without more, they are inadequate to show spoliation.

We canvass the pertinent evidence. A cashier employed by the defendant testified that there are cameras in the store that cover "a good majority" of the selling floor. Although this testimony supports a conclusion that the store had cameras focused on some areas of the market, it does not support a conclusion (or even a reasonable inference) that a security camera filmed the incident that transpired in the greeting card aisle. The absence of any such evidence is fatal to the plaintiff's hypothesis. See Mack v. Great Atl. & Pac. Tea Co., 871 F.2d 179, 181 (1st Cir. 1989) ("The evidence illustrating the factual controversy cannot be conjectural or problematic; it must have substance in the sense that it limns differing versions of the truth which a factfinder must resolve.").***

The conclusion that no videotape ever existed is buttressed by the record as a whole. ***

It is a proposition too elementary to require citation of authority that when there is no evidence to begin with, a claim of spoliation will not lie. This is such a case.

The plaintiff's alternate theory of spoliation is that the defendant's own policy required its employees to take photographs of accidents, and that the failure to do so here evidences spoliation. This is a theory not premised on the destruction of evidence but, rather, on the failure to collect evidence. As such, the theory is novel -- and the plaintiff presents it without the benefit of any on-point authority.

We need not reach the novel question of whether a failure to collect evidence may, in certain circumstances, be tantamount to spoliation. The plaintiff grounds this claim on the testimony of the assistant store manager, who stated that, as part of his training, the defendant taught him to compile a full report after an accident, talk to witnesses, take pictures, and secure any relevant videotape. This training, the plaintiff posits, shows that the defendant has a policy of evidence collection. Failure to adhere to that policy, he says, warrants an inference of wrongdoing.

The short answer to the plaintiff's claim is that there is no proof of a particular policy or custom. The manager's testimony only provides evidence that he was trained on best practices. The testimony cannot reasonably be understood to show the existence of an established store-wide policy or custom requiring employees to take a series of specific steps when an accident occurs. In these circumstances, the plaintiff has no plausible claim of spoliation.