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Hilligoss v. Schnuck Markets, Inc.

United States District Court, Seventh Circuit

December 16, 2013

GWENETH HILLIGOSS, Plaintiff,
v.
SCHNUCK MARKETS, INC., Defendant.

OPINION

BYRON G. CUDMORE, Magistrate Judge.

This matter comes before the Court on Plaintiff Gweneth Hilligoss' Motion for Leave to Amend Complaint at Law to Add Additional Counts (d/e 24) (Motion). This case comes before the Court under diversity removal jurisdiction. Hilligoss alleges that on March 26, 2011, she suffered personal injuries in Defendant Schnuck Markets, Inc.'s (Schnuck's) grocery store located at 2801 Chatham Road, Springfield, Illinois (Store). She alleges that a checker injured her by negligently hitting her in the elbow with a large package of bottled water. Notice of Removal (d/e 1), Exhibit A, Complaint at Law (Complaint), ¶¶ 7-10.

During discovery, Hilligoss sought copies of video recordings made by the Store's security cameras. Schnuck's provided the video recorded by one security camera. This camera recorded the events in the checkout lane where the incident occurred. Schnuck's adjuster had previously determined that the video taken by the other security cameras in the Store was not relevant, and so, did not preserve any of it. See Motion, at 6-7.

Hilligoss now asks to amend the Complaint to add a claim for spoliation of evidence. Hilligoss' proposed amendment alleges:

4. That the Defendant, Schnuck Markets, Inc., maintained and operated multiple closed circuit video cameras capturing images of the Defendant's premises from multiple angles.
5. That agents and employees of the Defendant, Schnuck Markets, Inc., held access to those cameras by virtue of their relationship with the Defendant.
6. That subsequent to the injury as alleged in the Plaintiffs Complaint at Law, a prior adjuster of the Defendant, Debbie Harris, retrieved one videotape of the Plaintiff, Gweneth Hilligoss, being struck on or about March 26, 2011, at 2801 Chatham Road, City of Springfield, State of Illinois.
7. That Harris failed to secure the footage of the other cameras in the immediate vicinity.
8. That upon information and belief, one or more cameras in the immediate vicinity also captured portions of the incident as described in the Plaintiffs Complaint at Law.
9. That the footage recorded by the aforesaid cameras was subsequently destroyed, or allowed to be destroyed, by agents or employees of the Defendant, Schnuck Markets, Inc.
10. That despite the fact that the Defendant knew, or reasonably should have known, that the video footage at issue was material evidence to a potential personal injury cause of action, the Defendant failed to use due care in preserving this key evidence.
11. That as a direct and proximate result of the Defendant's failure to use due care in preserving the videotape, Plaintiff was unable to establish by direct evidence the impact that caused injury to the Plaintiff, and the corresponding negligence and/or violation of the Premises Liability Act, and but for the loss of this evidence, Plaintiff would have succeeded in her prosecution of this lawsuit against the Defendant; further, Plaintiff has suffered money damages because of her inability to successfully prosecute her claim.

Motion, Exhibit M, Proposed Complaint at Law, Count III Negligence- Spoliation, ¶¶ 4-11. ...


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