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Store sanctioned for not preserving footage of slip/fall

Where a Kroger’s security camera recorded portions of a customer’s slip and fall but failed to preserve the footage, multiple sanctions were imposed, including that the store’s summary judgment motion was denied, the jury would be instructed regarding the lost video and the store was precluded from eliciting testimony about the video’s contents.


Diane S. Butler sued Kroger Limited Partnership I for personal injuries she claims she sustained from a slip and fall on spilled blueberries at a Kroger grocery store. A security camera at the store captured and recorded, to some extent, Butler’s slip and fall. That video apparently was lost. Before the court now are Kroger’s motion for summary judgment and Butler’s motion for imposition of sanctions.

Report and recommendation

Turning first to the spoliation motion, has established that Kroger failed to preserve electronically stored information, or ESI, which cannot be replaced. Butler requested that the court sanction Kroger for spoliation of the video by entering a default judgment or giving the jury an adverse inference instruction. The court, however, declines to find that Kroger acted with intent to deprive Butler of the ESI. The court’s findings regarding Kroger’s loss of the video demonstrate negligence, not purposeful misconduct.

The court does find, however, that Butler was deprived of the opportunity to make her case. Kroger employee Vernon Harris confirmed that the video showed the fall. That fact, alone, is enough to find that Butler was prejudiced by not being able to see it for herself and present it to the jury for their consideration.

Applying the court’s broad discretion with the goal of leveling the evidentiary playing field, the court recommends that: (1) Kroger’s motion for summary judgment should be denied regarding its defenses alleging no proximate cause, no breach of duty and no duty to warn based on an open and obvious hazard; (2) the jury should be instructed that there was video of Butler’s slip and fall but that Kroger lost it, and both parties should be permitted to present evidence and argument regarding Kroger’s failure to preserve the video evidence and (3) Kroger should be precluded from eliciting testimony from Vernon Harris claiming that the video did not show what caused Butler to slip and fall.

Butler also seeks a sanction for Kroger’s failure to disclose the spoliation, for obfuscating its answer to Butler’s request for production of documents regarding Kroger’s response to Butler’s litigation hold letter and for failing to disclose that a DVD of the video had been made and that Vernon Harris had viewed it. The court finds that further sanctions are not warranted.

Turning to Kroger’s motion, Kroger contends that summary judgement is appropriate because: (1) Butler cannot establish that the blueberries caused her fall; (2) Kroger exercised ordinary care as a matter of law; (3) Kroger had no duty to warn since the unsafe condition was open and obvious, and therefore Butler was contributorily negligent and (4) Butler failed to exercise ordinary care for her own safety by walking when she could not see, and therefore was contributorily negligent as a matter of law. While the court previously recommended that summary judgment be denied on most of these claims as a sanction for the spoliation of the surveillance video, it will now address the merits of each of these contentions in tum.

First, the court finds that a reasonable person could reach multiple conclusions as to whether the blueberries were the proximate cause of Butler’s fall and resulting claim of injury. Second, the evidence regarding how the blueberries fell to the floor and the expediency of Kroger’s response to the unsafe condition of the floor is disputed.

Third, the open and obvious nature of the spilled blueberries appears to be a material fact in dispute. Fourth, the degree of Butler’s negligence, if any, turns equally on the reasonability of her decision to keep walking despite the lighting conditions, and the open and obvious nature of the blueberries. Without undisputed evidence of both, contributory negligence cannot be decided as a matter of law.

District court opinion

Having reviewed the record in its entirety, the court hereby adopts and approves in full the findings and recommendations set forth in the magistrate judge’s thorough and well-reasoned report and recommendation filed on Nov. 30, 2019.

Butler’s motion for imposition of sanctions granted in part, denied in part. Kroger’s motion for summary judgment denied.

Butler v. Kroger Limited Partnership I, Case No. 2:19-cv-673, Dec. 18, 2020. EDVA at Norfolk (Smith). VLW 020-3-639. 47 pp.

VLW 020-3-639