Gregg v. Walgreen Co.

625 S.W.3d 636

Crystal GREGG, Appellant

v.WALGREEN CO., Appellee

NO. 14-19-00335-CV

Court of Appeals of Texas, Houston (14th Dist.).

Opinions filed May 11, 2021

Kenneth Richard Baird, Houston, for Appellant.

John Philip Griffis, Houston, for Appellee.

Panel consists of Justices Zimmerer, Poissant, and Wilson

Randy Wilson, Justice

This is an appeal from a no-evidence summary judgment in a slip-and-fall case. The appellant/plaintiff asserts that the trial court erred in granting summary judgment despite the existence of fact issues on two essential elements challenged in the motion and despite the defendant/appellee's alleged spoliation of evidence. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

Appellant/plaintiff Crystal Gregg allegedly slipped and fell on a puddle of water on the floor of a store controlled by appellee/defendant Walgreen Co. (hereinafter "Walgreens"). Gregg filed suit against Walgreens asserting a negligence claim based on a premises-liability theory and a negligent-activity theory. Walgreens filed a no-evidence summary-judgment motion, asserting that there is no evidence that (1) a condition posed an unreasonable risk of harm, or (2) Walgreens had actual or constructive knowledge of such a condition on the premises. Walgreens also asserted a no-evidence ground challenging the negligent-activity theory.

In response to Walgreens's motion, Gregg asserted that the evidence it submitted raised a genuine fact issue as to the two challenged elements of its premises-liability theory. Gregg also asserted that the trial court should deny summary judgment based on Walgreens's alleged spoliation of evidence. Walgreens filed a reply. The trial court granted summary judgment without specifying the grounds on which the trial court relied. Gregg has timely appealed.

II. ISSUES AND ANALYSIS

On appeal, Gregg asserts four appellate issues. In the first two issues, Gregg argues that the summary-judgment evidence raises a genuine fact issue as to the two challenged elements of her premises-liability theory. In the third and fourth issues, Gregg contends that Walgreens's alleged spoliation of evidence precludes summary judgment. On appeal, Gregg has not challenged the trial court's summary judgment as to her negligent-activity theory.

A. May this court consider the video evidence submitted by Walgreens?

Walgreens moved the trial court for a no-evidence summary judgment. Walgreens did not seek a traditional summary judgment. Consistent with its requested relief, Walgreens attached no evidence to its motion and did not rely on any evidence in support of its motion. In her summary-judgment response, Gregg submitted evidence that she claimed raised a genuine fact issue precluding summary judgment on the premises-liability theory. Gregg did not submit or rely on any video evidence.

Gregg also asserted that about an hour after she fell in the Walgreens store, the store manager reviewed surveillance video showing Gregg's fall, and the manager saved a video excerpt on a CD so it could be sent to Walgreens's insurance carrier. Although Walgreens saved this video showing the area in which Gregg fell starting from approximately 17 seconds before her fall, Walgreens did not save the part of the surveillance video showing this part of the store during the two hours before this excerpt (the "Deleted Video"). According to Gregg, Walgreens engaged in spoliation of evidence when it allowed its surveillance video system to tape over this two-hour portion of the surveillance video approximately three months after Gregg's fall. Based on this alleged spoliation of evidence, Gregg argued that Walgreens should be estopped from obtaining a summary judgment.

In its summary-judgment reply Walgreens provided a hyperlink to a dropbox allegedly containing the video excerpt saved by the store manager on the day of Gregg's fall. Though Walgreens discussed the video in the context of Gregg's spoliation-of-evidence allegations, Walgreens also asserted in its reply that the video "conclusively demonstrates that [Gregg's] premises liability claim has no basis in fact or law." According to Walgreens's reply, the video shows that Gregg did not slip on water and that Gregg fell because the heel of her shoe "buckled." Walgreens did not amend its summary-judgment motion to seek a traditional summary judgment based on the video, and the trial court granted Walgreens's no-evidence motion eight days after Walgreens filed its reply.

In its appellate brief, Walgreens provides this court with a hyperlink to a dropbox containing the video excerpt. As in the trial court, although Walgreens discusses the video in the context of the spoliation-of-evidence issues, Walgreens also treats the video as if it were part of the summary-judgment evidence and makes arguments based on the video's contents in response to Gregg's first two issues. If Walgreens wanted to seek summary judgment based on this video, Walgreens should have sought a traditional summary judgment based on the video. Instead, Walgreens sought only a no-evidence summary judgment. Gregg did not submit this video as evidence in response to Walgreens's summary-judgment motion. Neither in the trial court nor on appeal has Gregg asserted that the video raises a fact issue precluding summary judgment. In this context, we may not consider the video in determining whether the summary-judgment evidence raises a genuine fact issue on any of the grounds Walgreens asserted in its motion. See Binur v. Jacobo , 135 S.W.3d 646, 651 (Tex. 2004) (stating that evidence attached to a summary-judgment motion asserting only no-evidence grounds should not be considered as a basis for affirming the granting of the motion but may be considered in determining if the evidence raises a fact issue); Garrett v. Patterson-UTI Drilling Co. , 299 S.W.3d 911, 917 (Tex. App.—Eastland 2009, pet. denied) (same as Binur ); see also Stettner v. Lewis & Maese Auction, LLC , 611 S.W.3d 102, 109 (Tex. App.—Houston [14th Dist.] 2020, no pet.) (stating that "[i]n reviewing the propriety of summary judgment on no-evidence grounds, we ignore evidence attached to a combined summary-judgment motion and offered in support of traditional-summary-judgment grounds, unless the non-movant directed the trial court to that evidence in the response to the movant's no-evidence motion").

Nonetheless, Gregg's third and fourth issues raise the question of whether the trial court erred in impliedly denying Gregg's request for a remedy for Walgreens's alleged spoliation of evidence. Because the video is relevant to this issue raised in Gregg's response, we may consider the video as part of our spoliation-of-evidence analysis. See Costley v. H.E. Butt Grocery Co. , No. 10-07-00337-CV, 2009 WL 2264116, at *1–2 (Tex. App.—Waco Jul. 29, 2009, pet. dism'd) (considering evidence submitted in trial court by movant for no-evidence summary judgment in response to non-movant's spoliation-of-evidence assertion, for the purposes of analyzing the spoliation-of-evidence assertion) (mem. op.).

B. Did the trial court err in impliedly denying Gregg's request for a remedy for Walgreen's alleged spoliation of evidence?

In her third issue and fourth issues and her argument under these issues, Gregg argues that this court should reverse the trial court's summary judgment because Walgreens's alleged spoliation of evidence prevented Gregg from being able to establish constructive notice. As to the remedy Gregg sought for the alleged spoliation of evidence, Gregg did not ask the trial court to apply a presumption that the missing evidence would have been unfavorable to Walgreens. Instead, in her summary-judgment response, Gregg asserted that based on Walgreens's alleged spoliation of evidence, Walgreens should be estopped from obtaining a summary judgment. By granting Walgreens's motion, the trial court impliedly denied Gregg's request for this estoppel remedy for Walgreens's alleged spoliation of evidence. See Garcia v. Sellers Bros., Inc. , No. 14-05-00954-CV, 2006 WL 3360473, at *3 (Tex. App.—Houston [14th Dist.] Nov. 21, 2006, no pet.) (mem. op.) ; Aguirre v. South Texas Blood & Tissue Center , 2 S.W.3d 454, 457 (Tex. App.—San Antonio 1999, pet. denied). We review the trial court's denial of the estoppel remedy sought by Gregg for Walgreens's alleged spoliation of evidence under the abuse-of-discretion standard of review. See Brookshire Bros., Ltd. v. Aldridge , 438 S.W.3d 9, 27 (Tex. 2014) ; Garcia , 2006 WL 3360473, at *3. A trial court abuses its discretion if it acts arbitrarily, unreasonably, or without reference to any guiding rules or principles. See Flowers v. Flowers , 407 S.W.3d 452, 457 (Tex. App.—Houston [14th Dist.] 2013, no pet.).

The trial court, rather than the jury, determines whether a party spoliated evidence and, if so, what the appropriate remedy for the spoliation should be. See Brookshire Bros., Ltd. , 438 S.W.3d at 20. Gregg, as the party alleging spoliation, bore the burden of proving that Walgreens had a duty to preserve the Deleted Video. See id. This duty arose only if Walgreens knew or reasonably should have known that there was a substantial chance that Gregg would file a claim and that the Deleted Video would be material and relevant to Gregg's claim. See id. Gregg also had the burden of proving that Walgreens breached its duty to preserve the Deleted Video. See id. The trial court may instruct a jury to presume that the Deleted Video would have been unfavorable to Walgreens only if the trial court finds that (1) Walgreens acted with intent to conceal discoverable evidence, or (2) Walgreens acted negligently and caused Gregg to be irreparably deprived of any meaningful ability to present a claim or defense. See id. at 22–26.

The summary-judgment evidence submitted by Gregg includes the deposition testimony of Esmeralda Calzoncinth, the manager of the store in which Gregg fell. Calzoncinth testified as follows:

• Gregg told Calzoncinth "exactly where she fell."

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