Torts — Premises liability — Slip and fall — Jury instructions — Adverse inference — Spoilation of evidence — No abuse of discretion in denying motion for adverse inference jury instruction following defendant’s purported spoilation of evidence by failing to direct its surveillance at the scene of the fall, preserve the sack of rice which created the dangerous condition, maintain inspection logs, or identify unknown employee who swept the scene — Spoilation jurisprudence does not sanction punishment for the failure to create evidence and thus the mere fact that the area of the fall remained unmonitored by either camera or logged inspection cannot serve as a basis for relief — It cannot be said that failing to retain the bag of rice constituted spoilation where, although notification of potential litigation triggers the obligation to preserve crucial evidence, record contains only conjecture as to the fate of the bag of rice — Moreover, any value associated with retention of the bag was speculative where condition of the bag was readily observable and uniformly described by all witnesses — Given lack of formal discovery regarding unidentified employee shown sweeping up scene in plaintiff’s photograph, there is no indication that trial court overstepped its authority in tacitly rejecting any evidence of nefarious intent in defendant’s failure to disclose identity of employee

HORTENSIA PENA, Appellant, v. BI-LO HOLDINGS, LLC, etc., et al., Appellees. 3rd District. Case No. 3D19-0581. L.T. Case No. 18-1667. March 4, 2020. An appeal from the Circuit Court for Miami-Dade County, Rodolfo A. Ruiz, Judge. Counsel: Law Office of Keith Chasin, and Keith Chasin, for appellant. Cosio Law Group, and Eduardo Cosio, and Julie Bork Glassman, for appellees.

(Before LOGUE, LINDSEY, and MILLER, JJ.)

(MILLER, J.) Hortensia Pena appeals from a final summary judgment rendered in favor of Bi-Lo Holdings, LLC and Winn-Dixie Stores, Inc. d/b/a Fresco Y Mas (collectively referred to as “Winn-Dixie”) in her negligence action below. On appeal, Pena contends the trial court reversibly erred in denying her motion for an adverse inference jury instruction following the purported spoliation of evidence, and that, such inference would have precluded the entry of summary judgment. For the reasons set forth below, we discern no abuse of discretion and affirm.

Mere days later, Pena furnished Winn-Dixie with a written request to preserve all video surveillance recorded within the store in the hour surrounding the incident. In early 2018, she filed suit in the lower tribunal, and the parties engaged in discovery.

Ensuing evidentiary exchanges revealed the closed-circuit recording system within the store failed to capture the area in which the mishap occurred.¹ Winn-Dixie either discarded or misplaced the errant bag of rice and did not maintain hourly inspection logs. Further, the identity of the claimed employee depicted in the photograph could not be ascertained.

In late-2018, Winn-Dixie moved for summary judgment, alleging that, as the rice was pristine, admittedly devoid of discoloration, there was no indication it had been present on the floor for a sufficient length of time prior to the fall to impute actual or constructive notice of a dangerous condition. In response, Pena filed a motion seeking to allow the trier of fact to draw an adverse inference. In support thereof, Pena contended that, by failing to direct its surveillance at the scene of the fall, preserve the sack of rice, maintain inspection logs, and identify the unknown employee, Winn-Dixie thwarted her ability to demonstrate notice.

The trial court denied the request for adverse inference and, finding the record lacked any indicia of actual or constructive notice, granted summary judgment in favor of Winn-Dixie. The instant appeal ensued.

Consequently, prior to “exercising any leveling mechanism due to spoliation of evidence,” in Florida, a court must address a three-part threshold inquiry: “1) whether the evidence existed at one time, 2) whether the spoliator had a duty to preserve the evidence, and 3) whether the evidence was critical to an opposing party being able to prove its prima facie case or a defense.” Golden Yachts, Inc. v. Hall, 920 So. 2d 777, 781 (Fla. 4th DCA 2006) (citing Jordan ex rel. Shealey v. Masters, 821 So. 2d 342, 347 (Fla. 4th DCA 2002)). Moreover, “[b]ecause a duty to preserve evidence does not exist at common law, the duty must originate either in a contract, a statute, or a discovery request.” Gayer v. Fine Line Const. & Elec., Inc., 970 So. 2d 424, 426 (Fla. 4th DCA 2007) (citation omitted). Finally, “[t]he adverse inference instruction does not relieve a party from its burden of proof.” Golden Yachts, Inc., 920 So. 2d at 780 (citation omitted).

In the instant case, we wholly embrace the position that upon receipt of the presuit notice, Winn-Dixie was obligated to preserve the surveillance video. Indeed, as was acknowledged by the lower tribunal and fully borne out by the record below, all requested footage was maintained and later furnished in discovery. Nonetheless, existing spoliation jurisprudence does not sanction punishment for the failure to create evidence. Thus, the mere fact that the area of the fall remained unmonitored by either camera or logged inspection cannot serve as a basis for relief. See Osmulski v. Oldsmar Fine Wine, Inc., 93 So. 3d 389, 394 (Fla. 2d DCA 2012) (An adverse inference “allows counsel to argue to the jury the inference that the evidence was lost because it was damaging to the opposing party’s case.”) (emphasis added) (quoting Palmas Y Bambu, S.A. v. E.I. Dupont De Nemours & Co., Inc., 881 So. 2d 565, 582 (Fla. 3d DCA 2004)).

Pena further asserts the act of failing to retain the bag of rice constituted spoliation. Although it is self-evident that the presuit request solely referenced closed-circuit television footage, there is some precedent supporting the proposition that notification of potential litigation triggers the obligation to preserve crucial evidence. See Silhan v. Allstate Ins. Co., 236 F. Supp. 2d 1303, 1311-12 (N.D. Fla. 2002) (noting Florida “recognizes a duty to preserve evidence after a lawsuit has been filed,” and observing that two cases from Florida’s Fourth District Court of Appeal “may have expanded that duty to much earlier stages in litigation”) (citations omitted); see also Telectron, Inc. v. Overhead Door Corp., 116 F.R.D. 107, 127 (S.D. Fla. 1987) (“Sanctions may be imposed against a litigant who is on notice that documents and information in its possession are relevant to litigation, or potential litigation, or are reasonably calculated to lead to the discovery of admissible evidence, and destroys such documents and information.”) (citation omitted); GNLV Corp. v. Serv. Control Corp., 900 P.2d 323, 325 (Nev. 1995) (“[E]ven where an action has not been commenced and there is only a potential for litigation, the litigant is under a duty to preserve evidence which it knows or reasonably should know is relevant to the action.”) (quoting Fire Ins. Exch. v. Zenith Radio Corp., 747 P.2d 911, 914 (Nev. 1987)). Nonetheless, here, the record contains only conjecture as to the fate of the bag of rice. Moreover, the condition of the bag was readily observable, and uniformly described by all witnesses, thus, any value associated with retention was speculative. Hence, we cannot conclude the lower court erred in rejecting this ground in support of spoliation.

Finally, Pena contends her stymied and fruitless efforts to identify the store employee featured in her sister-in-law’s photograph improperly hampered her ability to prove notice. The photograph in question depicts only a lower leg and foot, attired in a dark-colored pant and sneaker, along with the bottom of a broom. In deposition, Winn-Dixie’s customer service manager attested that the absence of distinguishing characteristics within the photograph fatally impeded her ability to identify the employee. Given the lack of any further formal discovery regarding this issue, there is no indication that the lower court overstepped its authority in tacitly rejecting any evidence of nefarious intent.

Accordingly, we reject the contention that the judicial action in denying an adverse inference was “arbitrary, fanciful, or unreasonable [or that] . . . no reasonable man [or woman] would take the view adopted by the trial court.” Canakaris v. Canakaris, 382 So. 2d 1197, 1203 (Fla. 1980) (citation omitted). As the summary judgment evidence was insufficient to charge Winn-Dixie with notice of a dangerous condition, we affirm the final order under review.

Affirmed.

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¹Winn-Dixie produced thirty-two individual videos encapsulating events in the two-hour period surrounding the incident. Pena contends, here, that she should have been permitted to inspect the surveillance security system to verify the nonexistence of further relevant footage. The record is devoid of either: (1) evidence contradicting Winn-Dixie’s assertion that the fall occurred beyond the reach of the cameras; or (2) any formal request to facilitate inspection. See Fla. R. Civ. P. 1.350.