Spoliation — Bad Faith Required for Adverse Inference Instruction in Eleventh Circuit — Speculation Insufficient to Prove Bad Faith — Judicial Notice of Internet Evidence — Reference Book (Oxford English Dictionary)

Horton v. Maersk Line, Ltd., 2015 U.S. App. LEXIS 3033 (11th Cir. Feb. 27, 2015):

On the morning of March 18, 2011, plaintiff-appellant John Horton ("Plaintiff"), a longshoreman, was working aboard the M/V Sealand Champion when a crane operator, placing a shipping container onto a stack of other shipping containers, used sufficient force to dislodge a twist-lock from one of the containers.1 The twist-lock fell and struck Plaintiff on the head. Although he was wearing a hardhat, Plaintiff's neck was broken in two places. After Plaintiff was taken to the hospital, the twist-lock was taken from the ship's deck and brought to the ship's office. It was given to the ship's captain, who examined it and found [*2]  it to be in working order. The twist-lock was tagged to identify it and retained by the owner of the ship.

1  A twist-lock is "a locking device for securing large containers to the trailers on which they are transported." Twist-lock Definition, OED.COM, http://www.oed.com/view/Entry/208149?redirectedFrom=twist+lock#eid17272399 (last visited Jan. 21, 2015).

Plaintiff filed suit against the Georgia Ports Authority, the employer of the crane operator, in the State Court of Chatham County, Georgia. Plaintiff alleged that it was the negligent stacking of the containers that had caused his injuries.

That case was settled, with Plaintiff receiving $600,000 from the Authority. Plaintiff then filed suit, also in the State Court of Chatham County, against defendant-appellee Maersk Line, Limited ("Maersk"), the owner of the M/V Sealand Champion. Maersk removed this legal action to the Southern District of Georgia. Plaintiff subsequently added, as a party, defendant-appellee A.P. Moller-Maersk, A/S ("Moller"), the owner of the shipping container. In Plaintiff's amended complaint, he alleged that Maersk failed "to exercise reasonable care to provide vessel equipment which was reasonably fit for its intended use." The equipment [*3]  was unfit because "[t]he locking shoes/twists locks were antiquaiated [sic] and were known by Defendant MAERSK LINE, LIMITED to release from containers when being placed on vessels." As for Moller, Plaintiff argued that it "was in charge and had substantial control over the container at issue and breached its duty to Plaintiff and other longshoreman [sic] by failing to maintain the container and ensure that it was reasonably fit for its intended use." As to these defendants, Plaintiff asserted claims of negligent maintenance, negligent employment, negligent training, and negligent failure to warn.

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B.  The Adverse Inference

"A district court's decision regarding spoliation sanctions is reviewed for abuse of discretion." S.E.C. v. Goble, 682 F.3d 934, 947 (11th Cir. 2012) (quoting Eli Lilly & Co. v. Air Express Int'l USA, Inc., 615 F.3d 1305, 1313 (11th Cir. 2010). "[A]n adverse inference is drawn from a party's failure to preserve evidence only when the absence of [*14]  that evidence is predicated on bad faith." Id. (quoting Bashir v. Amtrak, 119 F.3d 929, 931 (11th Cir. 1997). "Mere negligence" is insufficient. Bashir, 119 F.3d at 931.

Plaintiff states that "Maersk provided a twist lock from container [sic] stacked at the 'five-high' level for analysis and testing. Unfortunately, the evidence in this action indicates that the twist lock actually fell from the container that was stacked 'four high.' These facts alone raise a rebuttable presumption in favor of Appellants that the twist lock was defective." The district court could make little sense of Plaintiff's argument. "Plaintiffs appear to assume bad faith simply because the twist-lock provided by Defendant Maersk did not meet Plaintiffs' expectations." Plaintiff contends that the district court mistook the argument and restates it on appeal:

Appellants have evidence that an incorrect twist lock was provided per the testimonies of those that witnessed the event. Additionally, Appellants provide evidence that some lubrication or other agent was added to the provided twist lock. The lubrication would be irrelevant if the twist lock provided by Appellee Maersk was a twist lock other than the one in dispute in this case. On the other [*15]  hand, if this twist lock was, as Maersk contends, the twist lock relevant to this lawsuit, then it is clear that the lubricant or agent applied to the twist lock would prevent the twist lock from being presented in an unmodified condition.

Plaintiff, however, cites no evidence in support of his position that the twist-lock provided was not the one that struck him. Nor does Plaintiff explain why the alleged lubrication means that the twist-lock was tampered with or is not the one involved in the accident.

The district court was well within its discretion in refusing Plaintiff's request for an adverse inference. First, Plaintiff has not provided evidence that should have led the district court to conclude that the twist-lock was either not the twist-lock that struck Plaintiff or that it had been modified after the accident. Second, even if the twist-lock was not the one that struck Plaintiff, Plaintiff has not met the burden of showing that there was bad faith, as opposed to mere negligence, in collecting and turning over the correct twist-lock. Plaintiff's unsupported speculations are insufficient to raise a genuine issue of material [*16]  fact. Cordoba v. Dillard's, Inc., 419 F.3d 1169, 1181 (11th Cir. 2005). We thus AFFIRM the district court's denial of an adverse inference on this issue.

Plaintiff argues that the district court erred in granting summary judgment in favor of Maersk because there was a genuine issue of material fact. However, Plaintiff's alleged genuine issue of material fact is the defective twist-lock. Plaintiff believes this remains a genuine issue of material fact because the district court erred in not granting the adverse inference Plaintiff requested. Plaintiff offers no further argument beyond that. Thus, having resolved the issue of the adverse inference, we find no error in the district court's grant of summary judgment in favor of Maersk. We AFFIRM the grant of summary judgment in favor of Maersk.

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