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 County Civil Court at Law No. 2

Harris County, Texas

Trial Court Cause No. 1109623

DISSENTING OPINION

I dissent because the trial court abused its discretion by impliedly denying 

the alleged spoliation of evidence and, in turn, granting appellee Walgreen Co.’s

no-evidence motion for summary judgment.
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Denial of Spoliation of Evidence Was an Abuse of Discretion

Spoliation of Evidence

In determining whether a spoliation presumption is justified, the court 

considers the following elements: (1) whether the spoliating party had a duty to

preserve evidence, (2) whether the alleged spoliator breached that duty by failing 

to do so, and (3) whether the spoliation prejudiced the non-spoliator’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, pet. denied); see also Brookshire Bros., Ltd. 

v. Aldridge, 438 S.W.3d 9, 14 (Tex. 2014); Miner Dederick Constr., LLP v. Gulf 

Chem. & Metallurgical Corp., 403 S.W.3d 451, 465 (Tex. App.—Houston [1st 

Dist.] 2013, pet. denied).

A party must preserve what it knows, or reasonably should know, is relevant 

to the action, is reasonably calculated to lead to the discovery of admissible 

evidence, is reasonably likely to be requested during discovery, or is the subject of 

a pending discovery sanction. This duty is triggered when the party knows or 

reasonably should know that there is a substantial chance a claim will be filed, and 

the evidence is relevant and material. Clark, 317 S.W.3d at 357.

The Duty to Preserve Evidence

Esmeralda Calzoncinth (“Calzoncinth”), the store manager, testified in her 

deposition that immediately after appellant Crystal Gregg’s fall, she called the 

store’s insurance carrier to report the claim, and spoke with Krystal Sedgwick

(“Sedgwick”). Calzoncinth made a report to Sedgwick, and then, within the hour, 

as part of the claims process, copied the portion of the videotape showing 

appellant’s entry into the store and her subsequent fall. Calzoncinth additionally 

testified that appellant returned to the store a few days later and, at appellant’s 
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request, was provided the claim number. Appellant asked for and was given a 

wrist brace by Calzoncinth immediately after her fall because appellant 

complained her wrist was hurting. The incident occurred on March 6, 2017. On 

May 17, 2017, counsel for appellant sent a letter to Sedgwick, informing the carrier 

of the claim, and requesting that “Walgreens [sic] immediately take appropriate 

steps to preserve any documentary or physical evidence related to the accident, 

including but not limited to any store surveillance videotape which captured some 

or all of the incident in question.” (emphasis added). The record supports the duty 

of Walgreen’s to preserve the videotape both of the incident, and prior to the 

incident.

Breach of the Duty to Preserve

Calzoncinth admitted in her deposition that preservation of store videos on 

the day of the incident was limited. Calzoncinth, despite being fully apprised of 

Gregg’s claim, only preserved Gregg’s entry into the store, seventeen seconds 

before Gregg’s fall, and a period after Gregg’s fall. Calzoncinth acknowledged 

there were sixteen separate camera angles. Finding Gregg appeared on four of the

videotapes, she only preserved a brief section of the videotape from one of the 

cameras that showed Gregg’s fall and the seventeen seconds preceding the fall. 

Calzoncinth admitted that the two-hour period prior to the fall could have been

retained on multiple CDs, but she did not do this. She further admitted that even a 

month after Gregg’s fall, additional videotape footage was available, but not 

preserved. Calzoncinth’s testimony further indicates that the store “machine”

holds three months of video footage. After three months, however, old videos are 

taped over and lost, unless preserved. This is what happened in this case. Despite 

Gregg putting Walgreen Co. on notice and despite her counsel requesting that such 

information be preserved, it was not. Because Walgreen Co. was on notice of the 
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claim on the date of the incident or within a few days of the fall, the duty to 

preserve the videotape arose well before the three month retention period. 

Prejudice to Gregg’s Ability to Present Her Case

The elements of a premises liability case are:

1. The owner had actual or constructive knowledge of some condition 

on the premises;

2. The condition posed an unreasonable risk of harm;

3. The owner did not exercise reasonable care to reduce or eliminate 

the risk of harm; and

4. The owner’s failure to use such care proximately caused the

plaintiff’s injuries 

Pipkin v. Kroger Tex., L.P., 383 S.W.3d 655, 670 (Tex. App.—Houston [14th 

Dist.] 2012, pet. denied) (citing LMB, Ltd. v. Moreno, 201 S.W.3d 686, 688 

(Tex.2006) (per curiam); Wal–Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934, 936

(Tex. 1998)); see Keetch v. Kroger Co., 845 S.W.2d 262, 264 (Tex. 1992).

Without temporal evidence, there is no basis upon which the fact finder can 

reasonably assess the opportunity the premises owner had to discover the 

dangerous condition. Clark, 317 S.W.3d at 357. Because constructive knowledge 

is a necessary element of proof to establish liability, the videotape footage of the 

one to two hours preceding Gregg’s fall should have been preserved. Walgreen

Co. has offered no justification for its failure to preserve the store videotape(s) for 

the one to two hours prior to the incident, which could show whether liquid or 

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

else had slipped or fallen at the same location prior to Gregg’s fall. 
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In her deposition, Calzoncinth testifed that although she and the cashier 

visually inspected the floor and did not see any water, she did not know how much 

time had elapsed since the incident and their visual inspection, and could not 

remember how many people had walked through the area prior to their inspection.

Neither employee touched the floor.

Prejudice to Appellant

In determining whether Gregg was prejudiced in her ability to present her 

case, we review the various circumstances, including the harmful effect of the 

missing evidence and the availability of other evidence to take the place of the 

missing information. Clark, 317 S.W.3d at 359.

The key issues in the case are whether there was water on the floor prior to 

appellant’s fall, and whether Walgreen Co. had constructive knowledge of such a 

condition. 

Because we cannot determine when the store manager and cashier made a

visual inspection of the floor, and Gregg testified in her deposition that she did not 

look at the floor after the incident, there is no available evidence other than the 

missing videotape footage to determine if water was on the floor prior to the fall, 

and for what period of time, if any. Based on the record before us, we also cannot 

determine whether there was water on the floor after Gregg’s fall. 

“In resolving evidentiary matters, a trial court does not abuse its discretion 

‘if some evidence reasonably supports the court's ruling.’” Abbott v. AntiDefamation League Austin, Sw., & Texoma Regions, 610 S.W.3d 911, 916 (Tex. 

2020) (quoting Henry v. Cox, 520 S.W.3d 28, 34 (Tex. 2017)). A trial court, 

however, has no “discretion” to incorrectly analyze or apply the law. Id.; Walker 
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v. Packer, 827 S.W.2d 833, 840 (Tex. 1992) (noting “a clear failure by the trial 

court to analyze or apply the law correctly will constitute an abuse of discretion”).

“It is a fundamental tenet of our legal system that trials should be decided on 

the merits, but when one party destroys evidence or permits evidence to be 

destroyed, this can make fair presentation of the merits difficult.” Johnson v. Nat’l 

Oilwell Varco, LP, 574 S.W.3d 1, 12 (Tex. App.—Houston [14th Dist.] 2018, no 

pet.) (citing Aldridge, 438 S.W.3d at 16). In the case at issue, the requisities of 

spoliation were met, and the effect of the trial’s court’s ruling prevents Gregg, as 

the party seeking affirmative relief, from presenting proof of an essential element 

of her claim in response to Walgreen Co.’s no-evidence motion for summary 

judgment, based on an unexplained spoliation of evidence. Therefore, the implied 

denial of the spoliation of evidence finding was an abuse of discretion. 

For these reasons, I respectfully disagree with the majority opinion. Because 

the trial court abused its discretion in impliedly denying the alleged spoliation of 

evidence without reference to guiding principles, the judgment should be reversed

and the cause remanded for further proceedings. See Miner Dederick Constr., 

LLP, 403 S.W 3d at 465.

/s/ Margaret “Meg” Poissant 

Justice

Panel consists of Justices Zimmerer, Poissant, and Wilson (Wilson, J., majority).