just different elements what happened was the defense had filed a motion for summary judgment which was granted the negligence claim was granted with the court finding that the defense did not have mart and so although they go hand in hand because without and it all hinges around this religion of evidence regarding video footage of and surveillance footage of the area claim if someone is injured on your property and the court did not dismiss or breath a motion for summary judgment based on disability they dismissed it stating that there was no duty the plaintiff argument that there is a duty under voluntary undertaking and then also special relationship with regard to the special relationship the case law states that especially relationship exists if the party who destroys the evidence has control of the other one this particular case to duty it's a our position that there was a special relationship that wal mart should have cats and preserve the videotapes and they had to be under the special relationship because they had control of that it  doesn't even though there's testimony that it doesn't necessarily show mercy fell we don't know what it shows it could have given notice there's testimony some of the warmer voice that they had been to the inspector they didn't see the most but there's also testimony that there's some by other warm place we don't know who they are because there's no record of that but perhaps there was a video of these employees coming in and out of the garden here and then they could be deposed and asked what they knew about that moment with regard to the less so with regards to spoil ation of evidence now we it's our position that they did have a duty under the special circumstances and involuntary undertaking which is not necessarily you know most time in voluntary undertaking you that did warm or heavy duty yes i'm did they breach that yeah they don't they did not see the videotapes even though you know it might not directly show the ball but it's in the show what's going around what's leading up to it and then as a in there although it's it's a subset of negligence that its own cause of action separate and apart from the regular negligence of breach was a sham so you know it's our position that as a result of their destroying the contradicting testimony that the bag wasn't there and she proceeded down the aisle so to see raises regarding when the last inspection might have been made in the area by wal mart and what have you i think the evidence of a tr videos or fail surveillance but in this case for the clear purpose of preventing loss is not for the purpose the primary purpose of capturing asked and so and that bolstered by the title of the moment he's in experience without incident report frightening for anything that happens so in this case the fact that she did say i i want to make it work for it doesn't necessarily mean she intended to bring claims didn't necessarily mean she was injured it literally could have been that home i think it's reasonable to conclude that from the undisputed other than that wal mart didn't have any reason to believe that she was filed suit and i think a really significant factor in this regard it says in the highlights from the parade is that had a chance to refute it because she does not have the videotape to live i think that it's very reason of all to conclude that that does make sense because the area where she was sort of a side just to clarify i don't believe it was the testimony of mr ellery that there was not a bag of mulch on the ground when she originally went into the aisle was that she didn't see there's a big difference you know as we all know shoppers they can be distracted and they're not necessarily looking out for especially if she's looking for mulch that's higher up and then with regard to the issue of these videotapes and notice we're just assuming that in this particular case everyone who's testifying found that the everybody's telling the truth well these are wal mart employees still employed by wal mart and it's a typically the procedure that if someone reports an incident that it's documented reports done that wasn't done in this case the videotapes are usually requested that wasn't done in the state in this case it there's a reason why they don't deserve it but if they don't preserve it then there's a separate cause of action against them for their failure to preserve it work they're destroying it so the reason for the cause of the action is to allow liability when a party feels to preserve evidence that may or may not occur prove a cause of action and this particular case we have a situation with or videotapes there's no reason why they should not have preserved th if there is video cameras in that area they should reserve units and it's a matter of a mystery all sending an e mail to discipline saying this preserve videotapes as he had done in prior instances involving people who were were injured or incidence of falls and things like that at the wal mart because it's a situation that if you have someone who's in charge of in possession of the surveillance video and something happens while we just asserted a well i'm going to prove your case same the videotape when a felony we don't know that because we don't have it because they didn't keep their so it's not a situation where we just assume everybody is telling the truth and will just take your word for it that one the video cameras would not have shown where she fell the second said that we don't know because we don't have the video  the video surveillance maybe there was a camera that would have shown the fall or people going in and out there's been argument by counsel that the video doesn't show and we don't know that because again we don't have  interest story all the evidence that they have and say well it would have shown anything anyway the video when the shown anything if we had the break assembly and you had to as it went to show that it was defective anyway so we just throw it out that's why there's a separate cause of action so when parties do destroy evidence so cases cannot be proved that there is a separate cause of action in this particular case i think that the it was an error for the court to dismiss the cause of action for storage of evidence based upon duty because there was a duty they did have  control of the video surveillance and it is foreseeable that there might be potential litigation it's not a situation where they had no notice of it the situation where someone felt she immediately went into alerted management to the situation and she specifically said i fell really really hard you know i could invent killed check the tape was witness gallery's testimony so that wouldn't at least what wal mart managers on notice that's forseeable that there granting of the motion for summary judgment with regard to this