Commercial Litigation and Arbitration

Spoliation — Adverse Inference at Bench Trial Does Not Preclude Verdict for Spoliator — Inference Is Permissive, Not Mandatory

Kwon v. Costco Wholesale Corp., 469 F. App’x 579 (9th Cir. 2012):

Kwon, an 83-year-old woman, was injured when she tripped on an 18-foot-long chain of flatbed carts while shopping at a Costco warehouse. After the incident, Costco failed to preserve a surveillance videotape that may have recorded the incident. The district court found that Costco's failure to preserve the videotape constituted spoliation, and granted Kwon's pretrial motion for an adverse inference against Costco.

The key disputed fact in this controversy was whether the carts were moving or stationary at the time Kwon collided with them. The district court found, after it weighed the evidence and made credibility findings, that the carts were stationary. The court relied on that finding to conclude that a stationary row of five flatbed carts is not an unreasonable hazard and that Kwon was negligent for failing to see and avoid the carts, which the court determined to be obvious obstructions in her path of travel.

Kwon argues that the district court erred by not applying the adverse inference to the question of whether the carts were moving at the time of the collision. The record does not support this assertion. ***

A fact finder may draw an inference against any party that destroys or despoils evidence, but that inference is permissive rather than mandatory. See Glover v. BIC Corp., 6 F.3d 1318, 1329 (9th Cir. 1993) (noting that a district court "has the broad discretionary power to permit a jury to draw an adverse inference from the destruction or spoliation against the party or witness responsible for that behavior" (emphasis added)); Akiona v. United States, 938 F.2d 158, 161 (9th Cir. 1991) ("Generally, a trier of fact may draw an adverse inference from the destruction of evidence relevant to a case." (emphasis added)).

In this case, the district court chose not to infer that the carts were moving. Instead, it relied on Costco employee Madamba's credible testimony that the carts were stationary. The finding that the carts were stationary is logical, plausible, and supported by inferences that may be drawn from the record. Accordingly, the court's finding was not clear error.***

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