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Marmaduke v. CBL & Associates Management, Inc.

Court of Appeals of Missouri, Eastern District, Fourth Division

June 6, 2017

SANDRA M. MARMADUKE, Plaintiff/Respondent,
v.
CBL & ASSOCIATES MANAGEMENT, INC. and ERMC III PROPERTY MANAGEMENT COMPANY, LLC, Defendants/Appellants.

         Appeal from the Circuit Court of St. Louis County 13SL-CC01304 Honorable Colleen Dolan

          OPINION

          James M. Dowd, Judge

         Sandra 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.

         Appellants 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.

         Factual and Procedural Background

         In 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.

         In 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.

         In 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 videotape.

         Marmaduke's 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.

         As a 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.

          For 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 Marmaduke's fall.

         At 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.

         As to 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.

         Corporate 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.

         Kevin 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 Marmaduke's fall.

         The 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 the Mall.

         The 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.

         In 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.

         For their part, Appellants argued that they did not destroy any evidence and that Marmaduke was simply trying to inflame the jury.

         Following 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 appeal follows.

         Discussion

         I. Actual or Constructive Knowledge of the Slippery Cheese

         In 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.

         Our 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 conclusion. Id.

         To 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).

         Here, 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.

         II. The Missing Videotape and Dispatch Log

         In 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.

         It is 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.[1] 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.

         We hold 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.

         1. Standard of Review

         We 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).

         The trial court is vested with broad discretion to control discovery and to fashion a remedy to address any non-disclosure of evidence. Zimmer v. ...


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