Affirmed and Majority Opinion and Dissenting Opinion filed May 11 , 2021.

In The 

## Fourteenth Court of Appeals

NO. 14

- 19

- 00335

- CV

CRYSTAL GREGG , Appellant

V.
WALGREEN CO. , Appellee

On Appeal from the Co unty Civil C our t at Law No

. 2

Harris County, T e xas Trial Court Cause No. 1 109 623

DISSENTING O P I N I O N
I d issent because the trial court abused its discretion by impliedly denying the al leged spoliation of evidence and, in turn, granting appellee Walg reen C o. ’ s

no
- evidence motion for summary judgment.2

D enia l of S p oliation of Evidence Was an Abuse of Disc retion

S poliation of Evidence

I n determi ning whe ther a spoliation presumption is just ified, the court considers the follo wing elements: (1) whether the spoliati ng party had a duty to
pre serve e vidence , (2 ) wh e the r the all e ged spo l i ator breached that duty by failing to do so , and (3) wh e ther the spoliation prejud ic ed the non
- s po l i ato r ’ s ability to present its case or defense

. See Clark v. Randalls Food , 317 S.W.3d 351, 356 (Tex. App.

—

Houston [1st Dist. ] 2010, p et. denied) ; see also B rookshire Bros., Ltd. v. Aldridge , 438 S.W. 3 d 9, 14 ( Tex. 2014) ; Miner Dederick Constr., LLP v. Gu l f Che m

. & Metallurgical Cor p

. , 403 S.W. 3d 451, 465 (Tex. App.

— Houston [1st Dist.] 2013 , pet. denied )

. A party must preserve wh a t i t k n o ws, or re ason ab ly should know , is relevant to the action, is rea s onably cal culated to lead to the discovery of admissi b le

e vidence, is reasonably likely to be requested d uring discove ry, or is the s ubject of a pending discovery sanction. This dut y is tri g gered when the party know s o r reasonably should know that there is a sub stan t i al ch a nce a cla im will be filed, and the eviden c e is r elevant an d material. Clark , 317 S.W.3d at 357.

Th e Duty to Prese rve Evidence

Es mer alda Calzon cinth ( “ Calzoncinth ” ) , the s tore manager, te stified in her d eposition th at immediately a fter appellant Crystal Gregg ’ s fall, she called the

store ’ s ins urance carrier to report the claim , and spo ke with Krystal Se d gwick ( “ Sedgwick ” )

. Calzoncinth ma d e a report to S e dg w i ck , and then, with in the hour,

as part o f the claims process, c op ied the portion of the videotape showing appellant ’ s entry into t he s tore and her subsequent fall

. Calzoncinth additionally

t estified that appell ant returned to the store a fe w day s later and , at a p pellant ’ s3

reque st, w a s provided the claim number. Appellant asked for and was given a wris t brace by Calzoncinth im mediately after her fall because appellant complain ed her wrist was hurting. The incident occurred on Mar ch 6, 2017. On
Ma y 17, 2017, cou n sel for appellant sent a letter to Se d gwick , informing the carrier of the claim, and r e q uesting that “ Walgreen s [sic] immediat ely take appropri ate steps to preserve any documentary o r physical evid ence related to the a c cident
, includ in g bu t not l imite d to any store surveillance videotape which captu red some or all of the in ci dent in question. ” (emphasis added)

. The record suppor t s the duty of Walgree n ’ s to preserve the videotape both of the incident, and prior to the incident

.

B r ea ch of the Dut y to Prese rv e

Calzon cinth admitte d in her de po sition tha t preservation of store videos on the day of the incident was limited. Calzoncinth, despite being fully apprised of Gregg ’ s claim, only prese rved Gregg ’ s entry into the store , seventeen s econds before Gregg ’ s fall , and a period after Gregg ’ s fall. Calzoncinth acknowledged there were sixteen separate camera angles

. F indin g Gregg appeared on four of the videot apes, she on ly p reserved a b rief section o f the video tap e from one of the

cameras that sh owed Gregg ’ s f a ll an d t he seventeen seconds preceding the fall

. Calzoncinth admitted that t h e two

- hour period pri or to the fall could have been retained on multiple CDs , but s he did no t do this. She further admitted that even a month after Gregg ’ s fall, additional vid e otape footag e w as available, but not preserved. Calzoncinth ’ s testimony further indicate s that the store “ machine ” hold s three month s of vid eo footage

. After three mo nths, however, ol d vid eo s are taped over and lost, unless preserved. This is what happ ened in this cas e. D e spite
Gre gg putting Walgreen Co. on notice and despite her counsel reques ting that such information be preserved, it was not. B ecause Walgreen Co. was on notice of th e4

claim on the dat e of th e incide nt or within a few days of the fal l, t he duty t o
p res erve the videotap e arose w ell before the three month ret ention peri od.

P rejud ic e to Gregg ’ s A bility t o P resent H er C ase

T he elements of a pre mises li ability c ase are:

1. T he ow ner had actu al o r constructive knowl edge of some condition on t he premises;
2. T he condition posed an unreasonable risk of harm;
3. T he owner did n ot exercise reasonable care to reduce or el iminate the risk of harm ; and
4. T he owner ’ s failur e to use such care prox i mately c ause d t h e plaintiff ’ s injuri es Pipkin v. Kroger Tex

. , L.P ., 383 S .W .3d 655, 670 (Tex. App.

— Houston [14th Dist.] 2012 , pe t. denied) (citin g LMB, Ltd. v. Moreno , 201 S.W.3d 686, 688 (Tex.2006) (per curiam); Wal

– Mart Stores, I

nc. v. Gonzal ez , 9 68 S.W.2d 934, 936 (T e x. 1998) ) ; see Keetch v. Kroger Co

. , 845 S.W. 2d 262 , 264 (Te x. 1992)

. Without temporal evidence, there is no bas i s upon which the fact finder can reasonably assess the oppo r tunity the prem ises ow ner had to disc over t he dangerous condi tion. Clark , 317 S.W

. 3d at 357

. Because constructive knowledge is a necessa ry el eme nt of p roof to esta b lish liability, the videotape footage of the one to two hours preceding Gregg ’ s fall should have been pr eserved. Walgree n Co. has o ff

ered no justification for its fai lure to preserve t he store v i deotape (s) for the one t o two hour s pr ior to the incident, which c ould sho w wh ether liquid or

water was spilled on the floor, if the floor had been recently mopped , or i f someone

e lse had sli p ped or fallen at the same location prior to Gregg ’ s fall.5

In her depo sit ion, C al zon cint h testifed th at al though she and the c a shier visu ally inspected the floor and did not see any water , she did not know how much ti me had elapsed since the inc ident and their visual inspection , and could not remember h ow many people had w a lke d through the ar ea prior t o t he ir inspection

. Neithe r employee touched the floor

. Prejudice to Appellant

In determ ining whether Gregg was prejudiced in her abilit y to present her

case, we review the various circumstance s, in cluding th e h a rmf ul effect of the missi ng evide nce and t h e a v ailability of other e vidence to tak e the pla ce of the missing information

. C l ark , 31 7 S.W

. 3d at 359

.
Th e key is sue s in t h e ca se are whether ther e was water on the floor prior to appellant ’ s fal l, and whether Walgree n Co. ha d construc tive kno wledge of suc h a condition.

B ecause we cannot determin e when the store ma nager and ca shier made a visual inspection of the floor, and G regg testi fied in her deposition that she did not look at the floor after the inciden t, t here is no av ailab le evidence other than th e missing videotape footage to determine if water was on the floor prior to the fall, and for what peri od of time, if any. Based on t he reco rd before us, we also cannot determine whether the re was water on the floor a fter G regg ’ s fall.

“ In r esolving e vid entiary matters, a trial court does not abuse its discretion

‘ if some evidence reasona bly supports the c ourt's ruling. ’ ” Abbott v. An ti

Defamation League Austin, Sw., & Texoma Regions
, 61 0 S.W.3d 911, 916 (Tex.
2020 ) (quoti ng Henry v. Cox
, 52 0 S.W.3d 2 8, 34 (Tex. 2017))

. A trial court , however, has no “discretion” to incorrectly analyze o r apply the law

. Id. ; Walker6

v. Packer , 827 S.W .2d 833, 840 (Tex. 1992) (noting “a clear failure by the trial court to analyze or ap ply the law correctly wi ll constit ute an abuse of discretion”)

.

“ It is a fundamental tenet of our legal system that trials should be decided on the merits, but when one p arty destroys evidence or permits evidence to be destroyed, this can make fair presentat ion of the merits dif ficult

. ” Joh nson v. Nat ’ l Oilwell Varco, LP , 574 S.W.3d 1, 1 2 (Tex. App.

— Houston [14th Dist.] 2018 , no pet. ) ( citing Aldridge , 438 S.W.3d at 16 )

. In the case at issue, the requi sities of spoliation were met , and the effect of t he trial ’ s court ’ s ruling p revents Gr e gg , as th e party se eking affirmati ve relief , from presenting proo f of an essenti al ele me nt of her claim in response to Walgreen Co

. ’ s no
- evidence motion for summary judgment , based on an unexplained spoliation o f evidence

. Th erefore, the implie d denial o f t

he spoliation of e vidence f inding was an abus e of discre tion.

For these reasons, I re spect fully disagree with the majority o pinion. Be cause the trial court ab used its discretion in impliedly denying the alleged spoliation of evidence without reference to guiding principles , t he judg ment shoul d be rev er sed and the cause rem anded for f ur the r proceedings. See Miner Dederick Cons tr., LLP , 4 03 S.W 3d at 465

.

/s/ Margaret “ Meg ” Poissant Justice

Panel c ons ists of Jus tice s Zimmerer, Poissant, a nd Wilson (Wilson, J., majority)

.