Court of Appeals of Missouri, Eastern District, Fourth Division
SANDRA M. MARMADUKE, Plaintiff/Respondent,
CBL & ASSOCIATES MANAGEMENT, INC. and ERMC III PROPERTY MANAGEMENT COMPANY, LLC, Defendants/Appellants.
from the Circuit Court of St. Louis County 13SL-CC01304
Honorable Colleen Dolan
M. Dowd, Judge
M. Marmaduke slipped and fell in the common area of the South
County Mall ("Mall") located in St. Louis County.
Marmaduke brought a premises liability lawsuit against the
Mall owner, CBL & Associates Management, Inc.
("CBL"), and the company that CBL hired for
housekeeping, maintenance, and security services at the Mall,
ERMC III Property Management Company, LLC ("ERMC
III") (collectively "Appellants"). A jury
found Appellants 90% at fault and Marmaduke 10% at fault for
the fall and assessed Marmaduke's damages at $90, 000.
The court reduced the damages by the assessed percentage of
Marmaduke's comparative fault and entered judgment in the
amount of $81, 000 plus court costs.
raise six points of error on this appeal: (1) that Marmaduke
failed to prove that Appellants had actual or constructive
knowledge of the dangerous condition; (2) that the trial
court erred by allowing Marmaduke, who had alleged that
Appellants spoliated relevant evidence in the form of
maintenance dispatch logs and videotape of Marmaduke's
fall, to present evidence of Appellants' usual practice
of maintaining dispatch logs and their use of video cameras
at the Mall; (3) that the trial court erred by denying
Appellants' objections to Marmaduke's closing
argument that inferred that Appellants had spoliated
evidence; (4) that the jury's assessment of 10% fault to
Marmaduke was against the weight of the evidence; (5) that
the trial court erred by instructing the jury that it could
consider the Appellants together as one party for purposes of
liability; and (6) that the trial court erred by allowing
Marmaduke to present evidence of the medical treatment and
charges related to her knee and hip replacement surgeries
because there was no expert medical testimony connecting that
treatment to Marmaduke's fall. For the reasons that
follow, we affirm.
and Procedural Background
August 2009, Marmaduke and her granddaughter were walking
through the common area of the Mall when Marmaduke slipped
and fell on cheese sauce that had apparently been spilled on
the floor, though the culprit was never identified. The Mall
security supervisor, James McNeil, responded to the area of
Marmaduke's fall, took pictures of Marmaduke and the
scene of the fall, and prepared an incident report. About two
weeks later, Marmaduke's attorney sent written notice of
her claim to Mall officials.
April 2013, Marmaduke filed suit against Appellants.
Marmaduke sent Appellants formal discovery requests seeking
production of any videotape footage taken on the day of
Marmaduke's fall of the common area where the fall took
place. Marmaduke also requested production of any maintenance
dispatch logs pertaining to the spilled cheese and to
Marmaduke's fall. Appellants denied the existence of any
videotape or dispatch log relating to Marmaduke's fall.
response to Marmaduke's request for admissions,
Appellants also denied that any videotape or dispatch log
relating to Marmaduke's fall had been created, but
indicated that if a dispatch log had existed, it was
destroyed by a water main break that occurred at the Mall in
May 2011. Moreover, Appellants denied having access to a
video surveillance system that had the capability of
recording Marmaduke's fall, and denied destroying any
attorney then took the depositions of two of Appellants'
designated corporate representatives and of security
supervisor McNeil. The depositions revealed that contrary to
Appellants' written discovery responses, Appellants had
the capacity to create dispatch logs and video recordings on
the day of Marmaduke's fall and video recordings were
made on the day of Marmaduke's fall. In addition, and
again contrary to Appellants' written discovery responses
that no dispatch log had been generated in connection with
Marmaduke's fall, the depositions called into question
whether such a dispatch log had in fact been created.
result of these revelations, Marmaduke filed a motion for
sanctions seeking an adverse evidentiary inference against
Appellants alleging that Appellants spoliated surveillance
videotape of the area of Marmaduke's fall and the
dispatch log relating to her fall. Specifically, Marmaduke
wanted to be able to tell the jury that it "may draw an
adverse inference to the effect that, had the video recording
been maintained it would show the cheese spill on the floor
for some period of time prior to Mrs. Marmaduke's fall,
the fall [itself], the response of the [Appellants']
employees, and [Marmaduke's] actions before and after the
fall." Further, Marmaduke requested the court to bar
Appellants from making any argument or presenting any
evidence that Appellants were not aware of the cheese spill
prior to Marmaduke's fall. The court denied
Marmaduke's motion for sanctions.
their part, Appellants filed a motion in limine seeking to
preclude Marmaduke from presenting any evidence at trial
regarding the circumstances of the disappearance of the
dispatch log and videotape relating to Marmaduke's fall.
The court denied Appellants' motion in limine, ruling
that while Marmaduke was not entitled to an adverse
inference, she could question witnesses on the subject of
Appellants' usual practice of maintaining dispatch logs
and the use of video cameras related to incidents like
trial, regarding the fall itself, the jury heard testimony
from Marmaduke and her granddaughter, and the jury was also
read portions of McNeil's deposition testimony.
Significantly, Marmaduke testified that McNeil told her that
he was aware of the cheese spill prior to her fall but had
not yet had time to clean it up.
Appellants' practice of maintaining dispatch logs and
their use of video cameras, the jury heard deposition
testimony from Appellants' corporate representatives.
Specifically, the security director for the Mall testified
that the normal policy is for a dispatch log to be created
any time a maintenance call comes in and that they generally
keep video recordings for thirty days unless they are
notified of an incident. If they are notified of an incident,
they would review the video and save it indefinitely if it
has captured an incident. The Mall's security director
also testified that Appellants had the capacity to create
dispatch logs and video on the day of Marmaduke's fall,
and that there was currently a video camera in the common
area where Marmaduke fell.
representative Zachary Morris testified that dispatch logs
are created when someone is staffing the cameras in the Mall;
that he was sure video recordings were made on the day of
Marmaduke's fall, that Appellants first became aware of
Marmaduke's injury on the day of the fall, and that
Appellants took no action to find out if a dispatch log
existed or to preserve any video recordings after receiving
the letter from Marmaduke's lawyer.
Whirley, the director of operations at the Mall, testified
that there were fifty-eight video cameras in the Mall and
that there was a water main break at the Mall in May 2011
that would have destroyed any dispatch log related to
jury also heard deposition testimony from McNeil that there
were cameras in the area where Marmaduke fell. McNeil
testified that the video image was displayed on screens at
the dispatcher's desk where the video was recorded.
McNeil testified that he did not review any video of
Marmaduke's fall because that was not a part of his job.
He testified that there would be a dispatch log for
Marmaduke's fall. McNeil testified that he filled out a
report documenting Marmaduke's fall for liability reasons
and because they kept track of everything that happened at
court allowed Marmaduke to read to the jury Appellants'
contradicting discovery responses in which Appellants
represented that there was no dispatch log or video of
Marmaduke's fall. Marmaduke also read to the jury
Appellants' answers to Marmaduke's request for
admissions in which Appellants admitted that they received
notice of Marmaduke's claim from her attorney on or about
August 28, 2009, denied that a dispatch log was created on
the day of Marmaduke's fall, and denied having access to
a video surveillance system that had the capability of
recording the common area of Marmaduke's fall.
closing argument, Marmaduke asserted that Appellants knew
about the cheese spill before Marmaduke's fall because
McNeil told Marmaduke he was aware of it but had not yet had
time to clean it up. In addition, Marmaduke argued that
Appellants had security personnel who monitored the video
screens and would have seen it. Marmaduke also argued that
Appellants lied about not having evidence of a dispatch log
and video recording and that Appellants allowed it to be
destroyed when they should have preserved it because they
were on notice of Marmaduke's claim. Marmaduke argued
that the jury could infer that Appellants did not keep the
video because it showed something unfavorable to
Appellants' defense. As to the dispatch log, Appellants
argued that if the dispatch log had been produced, it would
have corroborated Marmaduke's version of events with
regard to when Appellants were notified of the cheese spill.
their part, Appellants argued that they did not destroy any
evidence and that Marmaduke was simply trying to inflame the
the entry of judgment, Appellants filed a motion for judgment
notwithstanding the verdict, or in the alternative, a motion
for new trial. The trial court denied both motions. This
Actual or Constructive Knowledge of the Slippery
point I, Appellants contend that the trial court erred in
denying their motion for a directed verdict and motion for
judgment notwithstanding the verdict because Marmaduke failed
to make a submissible case of liability in that she failed to
prove that Appellants had actual or constructive knowledge of
the cheese spill prior to Marmaduke's fall. We disagree.
standard of review on the denial of a motion for directed
verdict and the denial of a motion for judgment
notwithstanding the verdict is essentially the same. W.
Blue Print Co., LLC v. Roberts, 367 S.W.3d 7, 14
(Mo.banc 2012). A case may not be submitted unless each and
every fact essential to liability is predicated on legal and
substantial evidence. Id. In determining whether the
evidence was sufficient to support the jury's verdict, we
view the evidence in the light most favorable to the verdict
and the plaintiff is given the benefit of all reasonable
inferences. Id. We will reverse the jury's
verdict for insufficient evidence only where there is a
complete absence of probative fact to support the jury's
establish a claim for premises liability under a theory of
negligence, a plaintiff must show: (1) a dangerous condition
existed on defendant's premises which involved an
unreasonable risk; (2) the defendant knew or by using
ordinary care should have known of the condition; (3) the
defendant failed to use ordinary care to remove or warn of
the danger; and (4) the plaintiff sustained injuries as a
result of such condition. Steward v. Baywood Condo.
Ass'n, 134 S.W.3d 679, 682 (Mo.App.E.D. 2004).
Appellants attack only the second element of the cause of
action. We find that Marmaduke made a submissible case that
Appellants had actual or constructive knowledge of the cheese
spill based on her testimony that Mall security officer
McNeil told her upon arriving at the scene of her fall that
he had received a report about the cheese spill but had not
yet had time to clean it up. While McNeil did not admit to
the statement Marmaduke attributed to him, the jury was free
to disbelieve his denial and believe Marmaduke especially
when it was undisputed that Marmaduke and McNeil had a
post-fall conversation as part of McNeil's investigation.
Given our standard of review, this testimony alone was
sufficient evidence to establish that Appellants had actual
or constructive knowledge of the cheese spill. Further, the
jury heard evidence that there was a large amount of cheese
spilled that was open and obvious, that Appellants employed
more than fifty video cameras at the Mall, including cameras
in the common area where Marmaduke fell, and that the camera
feeds could have been monitored by Mall security personnel in
the dispatch room. From this evidence, the jury could have
inferred that Appellants knew or by using ordinary care
should have known of the cheese spill. Point I is denied.
The Missing Videotape and Dispatch Log
point II, Appellants contend that the trial court erred by
allowing Marmaduke to present evidence in support of her
assertion that Appellants allowed a dispatch log and a
surveillance videotape relating to Marmaduke's fall to be
destroyed. Marmaduke had sought an adverse evidentiary
inference as to this evidence pursuant to the spoliation
doctrine. Appellants asked the court to exclude any evidence
regarding the circumstances of the missing evidence because
Appellants were not guilty of spoliation. The court denied
Marmaduke's request for a negative inference but ruled
that Marmaduke could question witnesses on the subject of
Appellants' usual practice of maintaining dispatch logs
and their use of video cameras and how and to whom incidents
like Marmaduke's fall were reported.
manifest that if a dispatch log and videotape relevant to
Marmaduke's fall existed and had been produced in
discovery, they would have been admissible at trial so long
as the requirements of The Uniform Business Records as
Evidence Law were met. The dispatch log and videotape, however,
were not available at trial. As to this evidence, Marmaduke
failed to convince the trial court that Appellants had
spoliated the evidence. Thus, the trial court did not grant
Marmaduke an adverse evidentiary inference, but that did not
end this issue as an evidentiary matter or whether the
imposition of discovery sanctions was warranted. The trial
court still had to determine what evidence pertaining to the
circumstances surrounding the handling of the dispatch log
and videotape would be allowed, if any, and what sanctions,
if any, were appropriate.
that the court did not err in its handling of the issue of
the apparently spoliated evidence because the evidence the
court allowed on this issue - Appellants' normal
practices for handling such evidence - was relevant and
admissible to the question of Appellants' negligence,
bias, interest, and credibility. Moreover, Appellants were
certainly not prejudiced when, based on our review of the
record in light of the spoliation doctrine and the Rule 61.01
discovery sanctions that were available to the court, the
court would have been justified in entering significantly
more severe remedies for the apparent spoliation of the
videotape and maintenance dispatch log than simply allowing
Marmaduke to question Appellants' witnesses regarding its
normal handling of such items of evidence.
Standard of Review
review the trial court's rulings on the admission of
evidence for an abuse of discretion. Gallagher v.
DafmlerChiysler Corp., 238 S.W.3d 157, 162, 166
(Mo.App.E.D. 2007). We presume that a ruling within the trial
court's discretion is correct. Id. at 166. An
abuse of discretion occurs when the trial court's ruling
is clearly against the logic of the circumstances before the
court at the time and is so unreasonable and arbitrary that
it shocks one's sense of justice and indicates a lack of
careful consideration. Id. at 162. If reasonable
persons can differ about the propriety of the trial
court's actions, then there is no abuse of discretion by
the trial court. Eagan v. Duello, 173 S.W.3d 341,
346 (Mo.App.W.D. 2005). Even when an evidentiary ruling is in
error, this court will not set aside the jury's verdict
unless that error likely changed the outcome of the case.
Barkley v. McKeever Enters., Inc., 456 S.W.3d 829,
842 (Mo.banc 2015).
trial court is vested with broad discretion to control
discovery and to fashion a remedy to address any
non-disclosure of evidence. Zimmer v. ...