# United States Court of Appeals **for the Fifth Circuit**

No. 21-20352

Carlon Ann Eagan,
Plaintiff—Appellant ,

versus
Walgreen Company,
Defendant—Appellee

.

Appeal from the United States District Court for the Southern District of Texas USDC No. 4:19-CV-04687

Before Wiener, Graves, and Duncan.
Per Curiam: * This case arises from a slip-and-fa ll accident in a convenience store. The district court granted summary judgment in favor of DefendantAppellee Walgreen Company (“Walgreen s”) and denied Plaintiff-Appellant Carlon Ann Eagan’s motion for spoliation sanctions. We AFFIRM.

* Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED March 8, 2022 Lyle W. Cayce Clerk Case: 21-20352 Document: 00516229154 Page: 1 Date Filed: 03/08/2022No. 21-20352

2 I. Background Eagan visited Walgreens just before closing time to buy Cold-EEZE. She slipped and “crashed down” on her way to checkout, dislocating her hip and breaking her femur. She underwent surgery and spent the next two weeks in a rehabilitation hospital where she re -learned how to walk, sit, and go to the bathroom. Eagan sued Walgreens which move d for summary judgment. Eagan moved for imposition of sanctions, co ntending that Walgreens “willfully and intentionally” destroyed evidence. The district court granted summary judgment in favor of Walgreens, holding that Eagan failed to prove causation: Eagan offer[ed] no admissible or supported evidence of what she slipped on — or that she sli pped on anything at all. She can argue all she wants that there was a liquid on the floor somewhere in the store. As the one who sued, it is her burden to prove that the area of the store where she slipped had a known liquid on the floor — not Walgreens’s burden to prove that the liquid was not there. The district court also denied Eaga n’s motion to impose sanctions, concluding that the motion was “large ly emotional puffery, conjecture, and unsupported theories.”

II. Summary Judgment Case: 21-20352 Document: 00516229154 Page: 2 Date Filed: 03/08/2022No. 21-20352

3 We review the district court’s gr ant of summary judgment de novo. 1 Summary judgment is appropriate “if th e movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” 2 A genuine dispute “exists when evidence is sufficient for a reasonable jury to re turn a verdict for the non- moving party, and a fact is material if it ‘might a ffect the outcome of the suit.’” 3 Under Texas law, “[a] landowner has a duty to exercise reasonable care to make the premises safe for invitees.” 4 An invitee must establish four elements to succeed on a premises-liability claim: (1) the property owner had actual or constructive knowledge of the condition causing the injury ; (2) the condition posed an unreasonable risk of harm; (3) th e property owner failed to take reasonable care to reduce or eliminate the risk; and (4) the property owner’s failure to use reasonable care to reduce or eliminate the risk was the proximate cause of injuries to the invitee. 5 The district court rested its analysis on the fourth element, holding that Eagan failed to prove causation. Eagan contends that, in her opposi tion to the motion for summary judgment and in her appellate brief, sh e “argued and presented evidence that [she] slipped on something on the floor, whether it was degreaser or mop

1 Antoine v. First Student, Inc. , 713 F.3d 824, 830 (5th Cir. 2013).

2 Fed. R. Civ. P. 56(a).

3 Willis v. Cleco Corp. , 749 F.3d 314, 317 (5th Cir. 2014) (citation omitted; quoting Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248 (1986)).

4 Austin v. Kroger Tex., L.P. , 465 S.W.3d 193, 202 (Tex. 2015).

5 Henkel v. Norman , 441 S.W.3d 249, 251-52 (Tex. 2014). Case: 21-20352 Document: 00516229154 Page: 3 Date Filed: 03/08/2022No. 21-20352

4 water, that was on the floor because Wa lgreens failed to properly clean the floor.” “A claim which is not raised in the complaint but, rather, is raised only in response to a motion for summary judgment is not properly before the court.” 6 In her complaint, Eagan alleged th at: “Unfortunately for Ms. Eagan, a Walgreens’ employee, in an attempt to quickly close the store that night, walked around the store just prior to Ms. Eagan’s arrival and sprayed degreaser on scuff marks and spots on th e floor rather than properly cleaning the floors (and taking proper measures to ensure Walgreens’ patrons [sic] safety in the process thereof).” As Walg reens points out, there is no mention anywhere in the complaint of an emp loyee mopping. However, reading her pleading generously, she did raise the premises-liability claim based on Walgreens not taking proper measures to ensure its patrons’ safety. We will therefore consider whether degreaser or mop water might have been the cause of the accident.

A. Degreaser There is no evidence that an employee sprayed degreaser on the floor. When Eagan walked in, she saw an emplo yee holding a spray bottle and a rag, but Eagan does not know what the employee was doing with them. She does not know what was in the spray bottl e. She also admitted that she never witnessed any employee spray anything on the floor. Even taking the evidence in the light most favorable to Eagan, there is no credible evidence that degreaser was sprayed on the floor or that degreaser was the cause of her accident.

6 Cutrera v. Bd. of Supervisors of La. State Univ. , 429 F.3d 108, 113 (5th Cir. 2005). Case: 21-20352 Document: 00516229154 Page: 4 Date Filed: 03/08/2022No. 21-20352

5 B. Mop Water Eagan did not see any liquid on the fl oor either before or after she fell. Neither did she see any em ployee mopping that night or any warning sign. She does not remember the fall itself but remembers being in “excruciating pain and groaning.” The closest Eagan gets to describing a substance on the floor is by stating that as she fell she “felt somethi ng slippery.” There is at least some evidence that there might have been wet spots in the store. One employee, Leah Benavides, testified that she was “spot mopping” around the time of the incident, working on “small areas, not a large area.” Benavides described the mop as “moist.” She explained “i t wasn’t saturate d. It was just moistened, but I wrung it out thoroughly to where I could at least go and mop up the spots. They were small spots.” She mopped by the island register and near the refreshment cooler. However, she could not say with certainty what route she took to reach those two spots. Benavides did, however, remember that when she saw Eagan lying on the fl oor it was not in a spot where she had mopped. In the statement she prepared thir teen days after the accident, Benavides stated that, as she proceeded to the refreshment coolers, she “became aware [they] had a customer in the store, it was mentioned to be careful of the area because it was just mopped.” At her deposition, Benavides did not remember whether she gave that warning. It is curious that Eagan relies on this as evidence that there was a wet spot on the floor. If true, Eagan was warned and cannot recover. “[I]n most cases, the landowner can also satisfy its duty by providing an adequate warning of the danger.” 7 “[A] warning by a cashier to a customer to ‘watch the wet spot’ was an adequate

7 Austin , 465 S.W.3d at 202. Case: 21-20352 Document: 00516229154 Page: 5 Date Filed: 03/08/2022No. 21-20352

6 warning as a matter of law. And a wet fl oor warning sign and verbal warning to ‘be careful’ because the ‘floor ma y be a little damp’ was adequate as a matter of law to discharge a proper ty owner’s duty to an invitee.” 8 At the summary-judgment stage, taking the eviden ce in the light most favorable to the nonmovant, we must assume that the warning was not given otherwise Eagan could not recover. Theoretically then, the “barely wet” mop might have dripped fluid somewhere along the route from the supply closet and the two wet spots. Still, neither Eagan nor Benavides place the fall at one of the two wet spots. The final piece of purp orted evidence arises from a literal and figurative game of telephone. Carlon Ann’s son, Robert Eagan, visited the Walgreens the day after the accident. Robert spoke with the assistant manager, Nadine Kaedby an d said that Kaedby “state d that they went back and reviewed the video footage and that my mom had slipped on some degreaser that the – an employee was using to spot mop the area before closing.” 9 Robert did not personally watch the surveillance footage. He later called the manager Andrew Lemons, an d testified that Lemons “gave me some more information, that he reviewed the video and that he said that the employee was a second-day transfer from another store that was trying to get out of the store early, admittedly, and that they were not following protocol.” 10

8 Henkel , 441 S.W.3d at 252 (citation omitted).

9 Kaedby gives a different account of the conv ersation: “I just let him know that all I knew is that his mom had slipped and fell and that there was no video of it, because he asked if there was a video of it.”

10 In contrast, Lemons states: “There’s no video of her falling at all.” Case: 21-20352 Document: 00516229154 Page: 6 Date Filed: 03/08/2022No. 21-20352

7 At most, we have (1) a damp mop pr esent somewhere in the store, (2) the injured party’s testimony that she felt “something slippery” without any explanation as to what might have been slippery, and (3) her son’s secondhand account of conversations he had with store management who were not present at the time of the acci dent. “Mere suspicion is insufficient to carry the . . . burden of estab lishing a genuine issue for trial.” 11 At the summary judgment stage, “[ t]he evidence of the non-movant is to be believed, and all justifiable in ferences are to be drawn in his favor.” 12 However, “a party’s uncorroborated se lf-serving testimony cannot prevent summary judgment, particularly if th e overwhelming docu mentary evidence supports the opposite scenario.” 13 Here, Eagan can only provide “conclusional allegations, unsupported assertions, [and the] presentation of only a scintilla of evidence.” 14 Summary judgment is appropriate.

III. Spoliation Spoliation is “the destruction or the significant and meaningful alteration of evidence.” 15 Sanctions are only approp riate on a showing of bad faith. 16 Bad faith “generally means destru ction for the purpose of hiding

11 McCarty v. Hillstone Rest. Grp., Inc. , 864 F.3d 354, 359 (5th Cir. 2017).

12 Anderson , 477 U.S. at 255.

13 Vinewood Cap., LLC v. Dar Al-Maal Al-Islami Tr. , 541 F. App’x 443, 447 (5th Cir. 2013) (unpublished).

14 McFaul v. Valenzuela , 684 F.3d 564, 571 (5th Cir. 2012).

15 Guzman v. Jones , 804 F.3d 707, 713 (5th Cir. 2015) (quoting Rimkus Consulting Grp., Inc. v. Cammarata , 688 F. Supp. 2d 598, 612 (S.D. Tex. 2010)).

16 Id

. Case: 21-20352 Document: 00516229154 Page: 7 Date Filed: 03/08/2022No. 21-20352

8 adverse evidence.” 17 For electronically stored information, an adverse inference may be given to the jury “onl y upon [a] finding that the party acted with the intent to deprive another party of the information’s use in the litigation.” 18 If the trial court concluded there was “prejudice to another party from loss of the information, [the court] may order measures no greater than necessary to cure the prejudice.” 19 The decision to issue sanctions for spoliation during discovery is re viewed for abuse of discretion. 20 The surveillance footage on the night of the accident was not preserved. Walgreens notified its thir d-party claims administrator about the incident. Lemons was directed to send to the claims administrator surveillance video of the event including the scene of the incident for a period spanning from one hour before to one hour after the incident. Lemons downloaded the footage to a DVD and sent it to the claims administrator. In the period of two years betw een the accident and the filing of the lawsuit, the discs were lost. Lemons eventually found three discs in a file, but all three were blank. Eagan, understandably, takes issue with the lost-and-found journey of the blank DVD’s. However, both Kaedby and Lemons confirmed that no camera caught Eagan’s fall. She therefore could not have suffered prejudice as a result of the inadvert ent destruction of the video. Eagan contends that the surveillance video wo uld have captured her fall, but the district court did not abuse its discretion in refusing to issue sanctions.

AFFIRMED.

17 Id

.

18 Fed. R. Civ. P. 37(e)(2).

19 Id. (e)(1).

20 Guzman , 804 F.3d at 713. Case: 21-20352 Document: 00516229154 Page: 8 Date Filed: 03/08/2022