Eagan v. Walgreen Co

Case: 21-20352 Document: 00516229154 Page: 1 Date Filed: 03/08/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
March 8, 2022
No. 21-20352
Lyle W. Cayce
Clerk
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-fall accident in a convenience store.
The district court granted summary judgment in favor of Defendant-
Appellee Walgreen Company (“Walgreens”) 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opinion should not be published and is not precedent except under the limited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.
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No. 21-20352
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 moved for summary judgment. Eagan
moved for imposition of sanctions, contending 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 slipped 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 Eagan’s motion to impose sanctions,
concluding that the motion was “largely emotional puffery, conjecture, and
unsupported theories.”
II.
Summary Judgment
2
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We review the district court’s grant of summary judgment de novo.1
Summary judgment is appropriate “if the 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 return a verdict for the non-moving party, and a fact
is material if it ‘might affect 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) the 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 opposition to the motion for summary
judgment and in her appellate brief, she “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).
3
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water, that was on the floor because Walgreens 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 that: “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 the floor rather than properly cleaning
the floors (and taking proper measures to ensure Walgreens’ patrons [sic]
safety in the process thereof).” As Walgreens points out, there is no mention
anywhere in the complaint of an employee 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 employee 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 bottle. 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).
4
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B.
Mop Water
Eagan did not see any liquid on the floor either before or after she fell.
Neither did she see any employee 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 something 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 “it wasn’t saturated. 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 floor it was not in a spot where she had
mopped. In the statement she prepared thirteen 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.
5
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warning as a matter of law. And a wet floor warning sign and verbal warning
to ‘be careful’ because the ‘floor may be a little damp’ was adequate as a
matter of law to discharge a property owner’s duty to an invitee.”8 At the
summary-judgment stage, taking the evidence 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 purported 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 and said that Kaedby “stated 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, and 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 conversation: “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.”
6
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At most, we have (1) a damp mop present 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 accident. “Mere suspicion is insufficient
to carry the . . . burden of establishing 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 inferences are to be drawn in his favor.”12
However, “a party’s uncorroborated self-serving testimony cannot prevent
summary judgment, particularly if the overwhelming documentary 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 appropriate on a showing of bad
faith.16 Bad faith “generally means destruction 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.7
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adverse evidence.”17 For electronically stored information, an adverse
inference may be given to the jury “only 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 reviewed for abuse of discretion.20
The surveillance footage on the night of the accident was not
preserved. Walgreens notified its third-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 between 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 inadvertent destruction of the video. Eagan
contends that the surveillance video would 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.
8