Metropolitan News-Enterprise


Wednesday, October 11, 2023


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Court of Appeal:

Instruction on Destruction of Evidence Properly Rendered

Rite Aid Did Not Preserve Surveillance Video, Despite Request, After Woman Slipped, Fell; Opinion Rejects Excuse That No Camera Captured the Event; Says Storekeepers Must Make Highly Frequent Inspections


By a MetNews Staff Writer


The Court of Appeal for this district has affirmed a $329,037 judgment, pursuant to a jury verdict, against Rite Aid Corporation, rejecting its contention that a judge prejudicially erred in instructing the jury on the willful destruction of evidence under circumstances where a surveillance tape, that it did not preserve, showed only some portions of the store and did not include the aisle where the mishap occurred.

 Friday’s unpublished opinion by Presiding Justice Maria E. Stratton of Div. Eight also rejects the retail drug chain’s argument that substantial evidence is lacking of any constructive knowledge on the part of store employees of a spill on the floor. A store employee testified that she went up and down the aisles 15-20 minutes before the fall and, Stratton said, that might not be good enough.

The opinion, should publication subsequently be ordered—and there is huge incentive on behalf of the plaintiffs’ bar to urge such—stores would be on notice that  personnel must check for spills more frequently than every 15 minutes to avert potential liability.

 Rite-Aid’s assertion that the verdict cannot be upheld based on plaintiff’s bare testimony that when she fell, she felt something slippery on the floor, likewise was rejected, as was its insistence that there is significance to that testimony being contradictory to what she said in her deposition.

No slippery substance was detected after the fall.

The plaintiff is Coleta Aposaga, who was age 77 when, in 2018, she tripped while in a Rite Aid store on Huntington Drive in Duarte, sustaining severe injuries. Fifteen days later, her lawyer admonished Rite Aid in a letter “not to destroy, conceal, or alter any information…stored in electronic form or generated by your companies computer systems or electronic devices for the date of our client’s injury.”

Disputed Instruction

Los Angeles Superior Court Judge Ernest M. Hiroshige read to the jury Judicial Council of California Civil Jury Instruction 204, which says:

“You may consider whether one party intentionally concealed or destroyed evidence. If you decide that a party did so, you may decide that the evidence would have been unfavorable to that party.”

Aposaga’s lawyer, Jonathan Nielsen of the Camarillo firm of Nielsen, Peterson & Nielsen LLP,  argued to the jury that the failure to preserve the video “is a willful suppression of evidence,” adding:

“You can take that—you can take their actions and assume that that evidence was unfavorable to them. That’s what the law says.”

Rite-Aid’s Argument

Rite-Aid maintained in its opening brief on appeal, signed by Jeffrey H. Baraban and James S. Link of the Pasadena law firm of Baraban & Teske:

“Rite Aid did not preserve store surveillance video for June 3, 2018. It is undisputed Rite Aid did not have any video coverage for the aisle in which plaintiff fell. Other specific areas, like the pharmacy, the stock room, and front of the store, were covered by surveillance video. Plaintiff’s counsel says that video still should have been preserved and provided for the entire day because, for example, a Rite Aid employee might have brought a broom out of the stock room to sweep. The illogic of that argument is obvious since sweeping would not have been shown on the aisle on which plaintiff fell.”

It went on to say:

“There was no instruction to cure the willful suppression instruction. The jury was left with the argument of plaintiff’s counsel that the video would somehow have been unfavorable to Rite Aid even though there was no evidence whatever that the video could have shown anything relevant about plaintiff’s fall. Counsel for plaintiff speculated about the videos and it is apparent the jury did as well.

“Speculation is not substantial evidence….The instruction should not have been given. The error was prejudicial, justifying reversal.”

Stratton’s Opinion

The instruction was proper, Stratton said, declaring the letter from Aposaga’s lawyer to Rite Aid was “sufficient to impose a duty to preserve.”

She wrote:

“Even if we were to assume for the sake of argument that a preservation letter only requires the recipient to preserve relevant evidence, relevancy is a very broad concept….

“It should go without saying that direct evidence of a plaintiff falling or of the spot where she fell, is not the only relevant evidence in a personal injury action….

“Rite Aid knew or should have known that any video showing inspections or maintenance of the store aisles or showing that Aposaga had difficulty walking would be relevant.”

Rite Aid presented evidence that Aposaga suffered from neuropathy which, Baraban told the jury, “causes pain, balance problems, numbness in the feet.” A video could have bolstered or damaged the theory that Aposaga’s medical condition was the cause of the fall, Stratton reasoned.

She said it could also have established the truth or falsity of the testimony of a store employee that she inspected the premises about 15-20 minutes before the mishap, and would have revealed whether anyone had taken a broom out of the stock room—at which a camera was aimed—at any time during the day to sweep.

The jurist said:

“None of this is speculation. The video would have shown what did or did not happen. It was relevant.”

Constructive Knowledge

There was no contention that any Rite Aid employee had actual knowledge of a hazard. The defendant argued in its opening brief that there was no substantial evidence of any constructive knowledge.

Stratton disagreed. She said there is constructive knowledge when a substance has been on a floor long enough that it ought to have been detected.

If the Rite Aid employee’s testimony is credited that she made an inspection 15-20 minutes before the fall, that would not mean that constructive knowledge was absent, under Stratton’s opinion. From that testimony, Stratton said, it can be inferred “that the slippery substance was on the floor long enough to have been discovered in the exercise of ordinary care,” adding:

“ Put differently, it could be sufficient to charge Rite Aid with constructive notice of the substance’s existence.”

Contradictory Testimony

At her deposition, Aposaga said that after she fell and a store employee came to her aid, she did not point to any substance on the floor, noting that “you could not see anything on the floor,” elaborating:

“Just slippery, you know, that you could feel.”

She testified in the deposition that no slippery substance was on her clothing.

At trial, she said that she saw “oil” on the floor and that her shoe had a slippery substance on it.

The appellant’s opening brief comments that in light of the contradiction, Aposaga’s “trial testimony is not substantial evidence,” adding:

“Rite Aid cannot be held liable for failing to notice the unseen (or nonexistent).”

Its stance was:

“The conjuration the floor was slippery is not substantial evidence of constructive notice of an unsafe condition. Plaintiff had to prove something slippery was actually on the floor. Rite Aid is not strictly liable for falls in its stores.”

Stratton said that Aposaga’s testimony at trial was sufficient to justify the verdict. “It is well settled under California law that it is for the jury to decide the credibility of witnesses at trial…,” she wrote. “This is true even when the witness himself expressly testifies that his prior testimony was false.”

The presiding justice pointed to various ways in which the deposition testimony and the trial testimony might be reconciled—such as postulating that a person might consider a shoe to be an accessory rather than clothing—but concluded that a reconciliation is not required.

“The jury could reasonably have decided to disregard all of that prior testimony in favor of Aposaga’s live trial testimony,” she explained. “Or, the jury could reasonably have rejected Aposaga’s trial testimony about what she saw on the floor but accepted her trial testimony about what she felt on her shoe and the floor.”

Stratton was unpersuaded by Rite Aid’s point that it could not have been expected to detect something that could not be seen (according to Aposaga’s deposition testimony), remarking:

“[T]that suggests Rite Aid should have swept rather than inspected. If a business sells clear liquids which are difficult to see if spilled, has markings on its floor which can obscure the presence of a colored liquid (such as the permanent dark marks on Rite Aid’s floors) or has highly reflective floors which might make it difficult to notice a spilled liquid, the business’s customers will have the same or more difficulty seeing the liquid as the business’s employees have, increasing the danger posed by the spill.”

The case is Aposaga v. Rite Aid Corporation, B321422.


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