Wackenhut Corporation v. Jesse James Gutierrez, 453 S.W.3d 917

Wackenhut operated a charter bus with four loop-recording cameras that overwrite after 168 hours; one camera might have captured the collision but the recording was overwritten.
Gutierrez was injured in a collision with Wackenhut’s bus and sent a letter two days later alleging the driver caused the crash; Wackenhut reported the claim to corporate HQ.
Nearly two years later Gutierrez sued for negligence and moved for spoliation sanctions, seeking a jury instruction presuming the erased video would be unfavorable.
Wackenhut opposed the motion pretrial, arguing no duty to preserve before service, no evidence the tape recorded the crash, lack of intentional or negligent spoliation, and absence of prejudice; the trial court ruled orally that Wackenhut negligently spoliated and ordered a spoliation instruction.
Wackenhut did not formally object at the charge conference but raised the objection after the charge was read; the jury returned a verdict for Gutierrez and the court of appeals affirmed.
The Texas Supreme Court granted review, held Wackenhut preserved error through its pretrial motion and the trial court abused its discretion in giving the instruction because Gutierrez was not irreparably deprived of presenting his claim; the matter was remanded for new trial.

Issue	Plaintiff's Argument (Gutierrez)	Defendant's Argument (Wackenhut)	Held
Whether defendant preserved error over the spoliation instruction	Wackenhut previously opposed sanctions but failed to object at charge reading; thus waived objection	Pretrial response and the trial court’s oral ruling on the motion put the court on notice and obtained a ruling, so error was preserved	Preserved: pretrial briefing + court’s ruling satisfied Payne test; no waiver
Whether trial court properly submitted a spoliation instruction	Instruction appropriate because Wackenhut negligently failed to preserve potentially favorable evidence	Instruction improper because even if negligence occurred, plaintiff was not irreparably deprived of presenting his case	Improper: trial court abused discretion under Brookshire Brothers because loss was not irreparable
Standard for spoliation instruction	Not separately argued—relies on court’s discretion to sanction	Requires intent to conceal or negligent destruction causing irreparable deprivation	Court applies Brookshire Brothers: instruction permitted only for intent or negligent spoliation causing irreparable deprivation; neither satisfied
Whether error was reversible (harm analysis)	Any error harmless given other evidence	Instruction likely affected verdict given contested liability and counsel’s emphasis on the missing video	Reversible: error probably caused rendition of improper judgment; new trial ordered

State Dep’t of Highways & Pub. Transp. v. Payne, 838 S.W.2d 235 (Tex. 1992) (preservation test: timely, plain notice to trial court and obtained ruling)
Ford Motor Co. v. Ledesma, 242 S.W.3d 32 (Tex. 2007) (applies Payne preservation principle)
Brookshire Bros., Ltd. v. Aldridge, 438 S.W.3d 9 (Tex. 2014) (limits when spoliation instruction may be given: intent to conceal or negligent spoliation causing irreparable deprivation)
Wal-Mart Stores, Inc. v. Johnson, 106 S.W.3d 718 (Tex. 2003) (noting substantial likelihood of harm from improper spoliation instruction in close cases)
Hartford Accident & Indem. Co. v. McCardell, 369 S.W.2d 331 (Tex. 1963) (motion in limine does not preserve evidentiary rulings because it seeks to prevent asking prejudicial questions rather than obtain rulings on admissibility)