United States District Court, C.D. Illinois, Peoria Division
TONI M. MORRISON, Plaintiff,
WAL-MART STORES, INC., Defendant.
JONATHAN E. HAWLEY U.S. MAGISTRATE JUDGE.
the Court is the Plaintiff, Toni Morrison's
(“Morrison”), Motion for Sanctions (D. 20) and
the Defendant, Wal-Mart Stores, Inc.'s
(“Wal-Mart”) response (D. 22) thereto. For the
reasons stated, infra, the motion is
Plaintiff alleges in her Complaint (D. 1), sounding in this
Court's diversity jurisdiction, 28 U.S.C. § 1332,
that she slipped and fell on a rug in the produce department
at Wal-Mart's East Peoria, Illinois store and that the
rug in question “was not lying flat upon the floor and
because of its color could not be seen as representing a
hazard.” Id. She alleges Wal-Mart must
compensate her for injuries she allegedly sustained due to
Wal-Mart's alleged negligence related to the offending
to Morrison's Motion for Sanctions is a missing
“accident file” created by Wal-Mart employees
after Morrison's slip and fall. According to testimony
adduced from various Wal-Mart employees during discovery,
Wal-Mart has a procedure in place for collecting information
and statements after an injury is reported in one of its
retail stores. The information is then sent on to Claims
Management, Inc., a wholly owned subsidiary of the Defendant
which handles injury claims.
instant case, after the accident in question, Wal-Mart
assistant manager, Leslie Riddell, testified that she took a
signed statement from Morrison on a form from the
Defendant's accident packet, which she thereafter gave to
assistant manager Joel Jason. Wal-Mart cannot now find this
statement or any “accident file” related to this
case. The Plaintiff claims that “[o]ther evidence and
testimony in this case indicate that the lost accident file
contained statements of the Plaintiff, Plaintiff's
daughter, a customer witness and an employee witness.”
(D. 20 at p. 3). She bases this claim on various
“inferences.” First, she infers that the accident
file contains the statement of another customer witness,
Stuart Parks, because Parks was listed in an “incident
report” as a witness. Wal-Mart, however, posits that
although a video shows assistant Manager Jason talking with
Parks, Jason had no paperwork in his hands during the
conversation. Jason also testified that simply listing
someone's name on an incident report does not mean that a
written statement was taken from the person listed,
especially where “in many cases customers who witness
things don't want to stick around to fill out a
file.” (Deposition of Jason at p. 33). Jason could not
recall taking Stuart's statement, or anyone else's
for that matter. Id. at pp. 31, 51-52.
Morrison infers that the accident file contains the statement
of the Plaintiff's daughter, Deserae Morrison or her
granddaughter, Cloette Zamero, both of whom accompanied the
Plaintiff on the day of the accident. Morrison bases this
inference on the fact that the incident report states that
she had a companion. Wal-Mart, however, notes that the
Plaintiff testified that she did not see a manager give any
papers or forms for her daughter to fill out and that,
indeed, she did not see the manager give forms to anyone to
fill out. Likewise, the Plaintiff's daughter testified
that she neither assisted her mother in completing any forms
nor did she personally complete any forms herself, although
she originally stated in an affidavit that she did provide a
statement to Wal-Mart.
Morrison infers that the accident file contains the statement
of a male Wal-Mart employee who was in the vicinity at the
time of the accident. She bases this inference on the fact
that the employee was in the area at the time of her fall and
spoke with some other Wal-Mart employees after the fall.
Wal-Mart, however, points out that, again, the Plaintiff
testified that she did not see this employee or anyone else
complete any paperwork or make any written statements.
is left to “infer” what is in the accident file
because, although she sought the accident file during
discovery, Wal-Mart never produced it. As explained by store
manager Rex Van Rheeden, although he personally searched for
the file, he could not find it.
sanction for losing the accident file, Morrison asks the
court to give an adverse inference jury instruction to the
jury about the missing file; to give a jury instruction
informing the jury that the Defendant did not produce the
accident file containing party and witness statements; and to
enter an order barring the Defendant from raising any
defense/argument that there is absence of evidence that it
had actual or constructive notice of the hazard in this case.
(D. 20 at p. 4). Wal-Mart, on the other hand, argues that the
Plaintiff's motion is based solely on speculation about
what the accident report might contain, the actual evidence
in the case demonstrates that only the Plaintiff completed a
written statement which would be in the accident file, and
the Plaintiff suffers no prejudice from Wal-Mart's having
lost the file.
Rule of Civil Procedure 37 allows a Court to sanction a party
for spoliation of evidence if “the party to be
sanctioned destroyed the evidence at issue in bad faith and
knew or should have known that litigation was
imminent.” MacNeil Automotive Products, Ltd. v.
Cannon Automotive, Ltd., 715 F.Supp. 786, 769 (N.D. Ill.
2010), citing Trask-Morton v. Motel 6 Operating
L.P., 534 F.3d 672, 681 (7th Cir. 2008). More
In analyzing whether sanctions are appropriate for failing to
preserve evidence, a court is guided by three factors: (1) a
breach of the duty to preserve or produce documents; (2) the
level of culpability for the breach; and, (3) the prejudice
that results from the breach. Danis v. USN Communications
Inc., 2000 WL 1694325, at *31 (N.D. Ill.). Sanctions
must be proportionate to the offending conduct. Langley
v. Union Electric Co., 107 F.3d 510, 515 (7th Cir.
1997), cited in Jacobeit v. Rich Township High School
District 227, 2011 WL 2039588, at *6 (NDIL). Sanctions
can be imposed on a finding of bad faith, willfulness, or
fault, Brandt v. Vulcan, Inc., 30 F.3d 752, 756 (7th
Cir. 1994), and are proper only when a party knew or had
reason to know that litigation was forthcoming.
Trask-Morton v. Motel 6 Operating L.P., 534 F.3d
672, 681 (7th Cir. 2008).
Kirgan v. FCA LLC, 2013 WL 1500708, *1 (C.D. Ill.
parties dispute whether Wal-Mart had a duty to preserve its
accident file and Wal-Mart's culpability for the loss of
the file. However, even assuming Wal-Mart had a duty to
preserve the file and it was at “fault” for its
loss, Morrison cannot show that she has suffered any
prejudice from the loss of the file.
evidence at most shows that the accident file contained the
Plaintiff's own statement. All the other direct evidence
in the case suggests that no other written statements were
taken or included in the accident file. Although Morrison
suggests that the accident file might contain other
statements, that suggestion is based on a number of
“inferences” which simply have no evidentiary
support in the record. They are less inferences than rank
speculation, which is insufficient to establish prejudice.
The Court is cognizant of the Plaintiff being in the
unenviable position of attempting to establish prejudice
without knowing for sure what the missing accident file
contains. However, the testimony of her own daughter and the
Wal-Mart employees all support a conclusion that the only
written statement ...