Carter v. Hi Nabor Super Market, LLC
168 So. 3d 698
La. Ct. App.2014Background
- On April 27, 2010 John Carter slipped and fell in Hi Nabor supermarket; surveillance video captured the fall and a small dark object on the floor. A witness (Spillers) said Carter slipped on a grape; Carter initially reported he slipped on water.
- Hi Nabor reviewed the store surveillance, burned a short clip showing the approach and the fall but did not retain earlier footage; the system auto-overwrites after 30 days.
- Carter’s counsel sent a certified notice of representation (May 19, 2010). Carter later learned that pre-incident portions of the surveillance had been purged and moved for an adverse inference instruction for spoliation.
- The trial court denied the motion for adverse inference and later granted Hi Nabor’s summary judgment, dismissing Carter’s claims. Carter appealed both rulings.
- The appellate court affirmed denial of the adverse-inference motion (no abuse of discretion) but reversed the summary judgment, holding genuine issues of material fact exist about how long the hazardous condition was present and whether the merchant had constructive notice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether adverse inference/jury instruction for spoliation was warranted | Carter: Hi Nabor intentionally destroyed relevant pre-fall footage and gave an inadequate explanation; adverse inference should be given | Hi Nabor: preserved the portion showing the fall, reasonably believed water (not visible) caused fall, system auto-purges after 30 days | Denied by trial court; appellate majority affirmed (no abuse of discretion in explanation), though one concurring justice would have reversed on these facts |
| Whether Hi Nabor had actual or constructive notice of the hazardous condition | Carter: constructive notice can be inferred because disputed testimony shows last floor sweep may have been long before the fall and video suggests a visible object | Hi Nabor: no evidence showing how long object was on floor; without spoliation inference plaintiff cannot prove temporal element required for constructive notice | Summary judgment for Hi Nabor reversed — appellate court held genuine issues of material fact (time object existed, timing of inspections, constructive notice) |
| Standard and availability of spoliation sanctions | Carter: adverse inference proper absent adequate explanation | Hi Nabor: provided adequate explanation and preserved incident segment | Appellate court reiterated sanction is discretionary and adverse inference inapplicable when explanation is adequate; affirmed trial court’s exercise of discretion |
| Proper remedy on summary judgment when video partially purged | Carter: summary judgment inappropriate because unresolved factual disputes require trial | Hi Nabor: dismissal appropriate because plaintiff cannot prove essential element (temporal presence) | Appellate court reversed summary judgment and remanded for further proceedings |
Key Cases Cited
- Varnado v. Banner Cotton Oil Co., 52 So. 777 (La. 1910) (authorizes unfavorable inference where party precluded production of evidence)
- New Orleans Draining Co. v. De Lizardi, 2 La. Ann. 281 (La. 1847) (early recognition of adverse presumption doctrine)
- White v. Wal-Mart Stores, Inc., 699 So.2d 1081 (La. 1997) (plaintiff must show condition existed for "some period of time" before fall to prove constructive notice)
- BancorpSouth Bank v. Kleinpeter Trace, L.L.C., 155 So.3d 614 (La. App. 1st Cir.) (trial court has broad discretion to impose spoliation sanctions; adverse inference inappropriate if adequate explanation provided)
- Clavier v. Our Lady of the Lake Hosp., Inc., 112 So.3d 881 (La. App. 1st Cir.) (discusses duty to preserve and spoliation doctrine)
- Randolph v. Gen. Motors Corp., 646 So.2d 1019 (La. App. 1st Cir.) (adverse inference not applicable where party gives adequate explanation)
- Reilly v. Natwest Markets Group, Inc., 181 F.3d 253 (2d Cir. 1999) (sanctions for spoliation should be tailored; appellate standard for discretionary evidentiary rulings)