521 S.W.3d 257
Mo. Ct. App.2017Background
- Sandra Marmaduke slipped on cheese sauce in a mall common area and sued mall owner CBL and its contractor ERMC III for premises liability. A jury found defendants 90% at fault and Marmaduke 10% at fault, awarding $90,000 (reduced to $81,000 by comparative fault).
- After the fall Mall security prepared an incident report; Marmaduke’s counsel later requested surveillance video and maintenance dispatch logs. Defendants initially denied any such video or logs existed in written discovery and in requests for admissions.
- Deposition testimony later revealed defendants had the capacity to record video and create dispatch logs on the day of the fall and that video had been recorded; defendants also received notice of the claim. Defendants claimed a 2011 water-main break destroyed any dispatch log.
- Marmaduke moved for spoliation sanctions seeking an adverse inference; the trial court denied that remedy but allowed Marmaduke to elicit testimony about defendants’ usual practices for maintaining dispatch logs and video surveillance.
- At trial Marmaduke testified a security supervisor told her he knew about the spill before her fall; depositions established cameras in the area and routine practices for logging and retaining video. The jury heard argument that defendants had destroyed or lied about the missing evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1. Submissibility: knowledge of the hazard | Marmaduke argued McNeil told her he knew of the spill before she fell and cameras/dispatches show constructive knowledge. | Defendants argued no actual or constructive knowledge shown; directed verdict warranted. | Court: testimony that McNeil knew of spill plus evidence of cameras/monitoring made a submissible case; denial of JNOV/directed verdict affirmed. |
| 2. Admission of evidence about missing video/dispatch log | Marmaduke sought to prove defendants’ routine practice and suggest spoliation; requested adverse inference (sanction). | Defendants sought to exclude testimony about missing evidence and circumstances of loss. | Court: denial of adverse inference was proper, but allowing testimony about defendants’ usual practices was relevant and within discretion. |
| 3. Closing argument accusing spoliation | Marmaduke argued inference that missing evidence was unfavorable and defendants lied. | Defendants moved to strike closing statements as unsupported. | Court: wide latitude in closing; allowing Marmaduke’s inferences was not abuse of discretion. |
| 4. Comparative fault allocation (10% to Marmaduke) | Marmaduke argued evidence supported low fault allocation to her. | Defendants argued 10% was against the weight of evidence and excessive. | Court: jury verdict supported by evidence and inferences; allocation upheld. |
| 5. Agency instruction treating both defendants as one party | Marmaduke treated CBL and ERMC as principal and agent; requested single-liability instruction. | Defendants argued insufficient evidence of agency and instruction erroneous. | Court: defendants admitted the contractual relationship and evidence showed control; failure to preserve instruction objection; instruction proper. |
| 6. Admission of medical evidence for later knee/hip surgeries | Marmaduke presented deposition and records showing fall aggravated preexisting conditions leading to surgeries. | Defendants contended no expert linked surgeries to the fall. | Court: plaintiff’s medical testimony (Dr. Hulsey) supported aggravation claim; admission not an abuse of discretion. |
Key Cases Cited
- W. Blue Print Co., LLC v. Roberts, 367 S.W.3d 7 (Mo. banc 2012) (standard for reviewing directed verdict and JNOV; view evidence in light most favorable to verdict)
- Pisoni v. Steak ’N Shake Operations, Inc., 468 S.W.3d 922 (Mo. App. E.D. 2015) (defines spoliation and adverse-inference principles)
- Morris v. J.C. Penney Life Ins. Co., 895 S.W.2d 73 (Mo. App. W.D. 1995) (duty to preserve evidence can support inference of bad faith for spoliation)
- Wilmes v. Consumers Oil Co. of Maryville, 473 S.W.3d 705 (Mo. App. W.D. 2015) (failure to explain destruction of evidence may give rise to adverse inference)
- Anderson v. Beatrice Foods Co., 900 F.2d 388 (1st Cir. 1990) (courts should tailor spoliation remedies proportionally to the misconduct)
- Mitchell v. Kardesch, 313 S.W.3d 667 (Mo. banc 2010) (witness bias/interest is always relevant and may be explored on cross-examination)