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Filing # 174935810 E-Filed 06/08/2023 04:36:51 PM
IN THE CIRCUIT COURT, FOURTH
JUDICIAL CIRCUIT, IN AND FOR
DUVAL COUNTY, FLORIDA
CASE NO.: 16-2022-CA-6621
DIVISION: CV-C
SARAH STAMBLER,
Plaintiff,
vs.
OPTIVO GROUP, LLC d/b/a THE
STERLING AT SAN MARCO,
Defendant.
___________________________________/
PLAINTIFF’S MOTION FOR SPOLIATION, ADVERSE INFERENCE AND
VALCIN INSTRUCTION AND MOTION FOR SANCTIONS
COMES NOW, Plaintiff, SARAH STAMBLER, by and through her undersigned
counsel, hereby files her Motion for Spoliation, Adverse Inference, Valcin Instruction
and Motion for Sanctions and states as follows:
STATEMENT OF FACTS
1. This action arises from a slip and fall incident that took place in the common area
laundry room of Defendant’s apartment complex on August 7, 2022. While Plaintiff was walking to
do her laundry, she slipped and fell in a giant puddle that was filled with mud, dirt, and track prints.
See Plaintiff, Sarah Stambler’s deposition at p. 49:17, attached hereto as Exhibit “A.” The liquid
puddle was coming from a washing machine that was leaking. Id. After Plaintiff fell, Plaintiff took
photographs of the puddle and dirty substance on the floor. See Photographs of the substance
attached hereto as Exhibit “B.”
ACCEPTED: DUVAL COUNTY, JODY PHILLIPS, CLERK, 06/09/2023 04:07:37 PM
2. After Plaintiff’s fall, Plaintiff sent an e-mail to Defendant’s property manager, Inis
Alvarado, to report her fall and the condition of the laundry room. See E-mail correspondence
dated August 7, 2022, attached hereto as Exhibit “C.”
3. Inside the laundry room where Plaintiff fell, Defendant has a video surveillance
camera that captures activity inside the laundry room including the area where Plaintiff fell. See Video
of laundry room attached hereto as Exhibit “D.” See Deposition testimony of Inis Alvarado at p.
16:16-18, attached hereto as Exhibit “E.”
4. Ms. Alvarado is the only individual at Defendant’s apartment complex that has
access to the security surveillance cameras located in the laundry room. See Exhibit “E” at p.
32:10-12.
5. Approximately one hour after learning of Plaintiff’s fall, Ms. Alvarado contacted
Defendant’s Chief Executive Officer, Martha Torres, to inform her of Plaintiff’s slip and fall. Ms.
Torres instructed Ms. Alvarado to “verify the fall.” Ms. Alvarado claims to verify the fall, she
went back to look at the surveillance footage of the laundry room. Id at p.18:1-5. Ms. Alvarado
claims that Ms. Torres even reminded her to save video footage as part of the “verification
process.” Id at p.36:1-7.
6. Defendant has a company policy that requires its employees, specifically Inis
Alvarado, to save 24 hours of video footage prior to an incident and 24 hours of video footage
after an incident such as a slip and fall. Id at p.32:15-25.
7. Ms. Alvarado concedes that her failure to preserve the video footage was a violation
of company policy and a “mistake”. Id. at p.33:1-10. Further, she claims that while in the process
of saving the video she became distracted when people arrived to her office and therefore forgot
to save the video Id at p.36:4.1
8. Ironically, Ms. Alvarado chose to save some video footage and chose not to save
pertinent video footage which would reveal the following: 1) the last time the area was inspected
by Defendant’s employees; 2) the actual fall; and 3) the clean-up of the giant puddle and liquid.
Ms. Alvarado only decided to save video footage of Plaintiff’s fiancé returning to the laundry room
to finish a load of laundry several hours after Plaintiff’s fall and a short clip of Plaintiff returning
to the laundry room the following day. Nothing prevented her from saving video footage prior to
Plaintiff’s fall, the actual fall, or the clean-up of the giant dirty puddle other than her “mistake.”
9. The video footage of any prior inspection completed prior to Plaintiff’s August 7,
2022 fall, Plaintiff’s slip and fall incident, and the clean-up of the giant dirty puddle of liquid no longer
exists.
10. Ms. Alvarado did in fact review the surveillance footage of August 6, 2022, the day
prior to Plaintiff’s fall to verify whether or not there was a leak in the laundry room. Id. at p.17:17-
25. She did not save the footage she reviewed. She claims that she didn’t save this footage because
she “did not expect a situation to happen such as the one that happened.”2 Ms. Alvarado already
knew about Plaintiff’s slip and fall before she started reviewing the video footage from August
6, 2022. Ms. Alvarado stated that when she reviewed the footage from the day of Plaintiff’s fall,
August 7, 2020, she started at 7:00 a.m. and there was nothing on the floor. Ms. Alvarado didn’t save
1
As further explained, this is completely disingenuous as Ms. Alvarado decided to go back and save video footage
several hours after Plaintiff’s fall on the same date.
2
As indicated below, this is a completely disingenuous statement as the whole reason Ms. Alvarado even knew to
go back and review the video footage was because Plaintiff reported a slip and fall that occurred in the laundry
room.
the video because it didn’t occur to her to do so. 3 Ms. Alvarado testified that she didn’t watch any
video beyond 7:00 a.m. to 12:29 p.m. Id. 24:12-23.4 Plaintiff’s fall occurred at 12:29 p.m.
11. Ms. Alvarado claims that she didn’t save the footage of Plaintiff’s fall because the
camera didn’t detect Plaintiff’s fall. Id. at 27:9-11.5 Amazingly, the location of where Plaintiff fell is
detected in both of the surveillance videos Ms. Alvarado actually saved. See Exhibit D.
12. The cameras were not defective on the day of the incident. See Exhibit E at 27:14-
23. Ms. Alvarado claims that the cameras only detect motion that occurs starting at the end of the
dryers. Id. Ms. Alvarado was then shown video footage that she saved where a woman did not
walk to the end of the dryers, yet the camera captured the footage. Id. at 28-1-4. 6
13. Ultimately, Ms. Alvarado conceded that she voluntarily chose not to save any video
footage from the day of the incident beginning at 7:00 a.m. to 12:29 p.m. See Ms. Alvarado’s
testimony below:
Q. You would agree with me that you voluntarily chose
not to save any video footage from 7:00 a.m. to 12:29 p.m.,
correct?
A. True.
Q. And you voluntarily chose not to save any video from
12:20 p.m. until the video footage that you saved from 13:24
On August 7, 2022 at 1:24 p.m.
A. True.
Q. And why is that?
A. It didn’t cross my mind, honestly.
3
This is another disingenuous comment as, Ms. Alvarado testified that it was company policy and Ms. Torres
instructed her to do so.
4
This is also disingenuous because Ms. Alvarado went back and saved video footage 1:24 on August 7, 2022 and
video footage on August 8, 2022 at 5:42 p.m.
5
How does Ms. Alvarado know this information if she did not review any of the footage after 7:00 a.m. to 12:29
p.m.?
6
This too is another disingenuous comment about Ms. Alvarado’s handling of the video footage on August 7, 2022.
Q. As the property manager, do you believe it is important
to know how long that muddy substance was on the ground
before the woman fell on August 7, 2022.
A. True.
Q. And do you --- you cant sit here and say whether the
substance was on the ground more than an hour before she fell,
can you?
A. No. I can’t say with certainty.
Id. at 30:1:25.
MEMORANDUM OF LAW
I. Legal Authority
a. First Party v. Third Party Spoliation of Evidence as a Cause of Action
The Third District court of Appeals in Bondu v. Gurvich, 473 So. 2d 1307 (Fla. 3d DCA
1984) recognized what is now commonly referred to as a cause of action for spoliation of evidence.
The essential elements of a cause of action for negligent spoliation of evidence are 1) the existence
of a potential civil cause of action; 2) a legal or contractual duty to preserve evidence which is
relevant to the potential cause of action; 3) destruction of that evidence; 4) significant impairment
in the ability to prove the cause of action; 5) a causal relationship between the destruction of the
evidence and the inability to prove the cause of action; and 6) damages. Jost v. Lakeland Regional
Medical Center, Inc., 844 So. 2d 656 (Fla. 2d DCA 2003); Hagopian v. Publix Supermarkets, Inc.,
788 So. 2d 1088 (Fla. 4th DCA 2001); Brown v. City of Delray Beach, 652 So. 2d 1150 (Fla. 4th
DCA 1995) Continental Ins. Co. v. Herman, 576 So. 2d 313 (Fla. 3d DCA 1990).
In 2005, the Florida Supreme Court in Martino v. Wal-Mart Stores Inc., 908 So. 2d. 342
(Fla. 2005) held the remedy against a first-party defendant for spoliation of evidence is not an
independent cause of action for spoliation of evidence, and instead the available remedies are
discovery sanctions and a rebuttable presumption of negligence for the underlying tort,
disapproving of Bondu v. Gurvich, 473 So.2d 1307.
b. Remedies for Spoliation as a Discovery Violation
In cases where evidence has been lost or destroyed, either intentionally or inadvertently,
sanctions for discovery violations may be appropriate pursuant to Fla. R. Civ. P. 1.380.
Appropriate sanctions under the rule for losing or destroying evidence include striking evidence
or testimony, striking pleadings, striking defenses, dismissal with prejudice, and entering a default.
In Sponco Mfg., Inc. v. Alcover, 656 So. 2d 629 (Fla. 3d DCA 1995) (citations and footnotes
omitted), the court discussed the standard to determine the appropriate sanctions to impose on a
party who fails to preserve evidence:
What sanctions are appropriate when a party fails to preserve evidence in
its custody depends on the willfulness or bad faith, if any, of the party
responsible for the loss of the evidence, the extent of prejudice suffered by
the other party or parties, and what is required to cure the prejudice.
Drastic sanctions, including default, are appropriate when a defendant alters or destroys
physical evidence, and when the plaintiff has demonstrated an inability to proceed without such
evidence. Sponco Mfg., Inc. v. Alcover, 656 So. 2d 629, 630 (Fla. 3d DCA 1995). See also Harrell
v. Mayberry, 754 So. 2d 742 (Fla. 2d DCA 2000); DeLong v. A-Top Air Conditioning Co., 710 So.
2d 706 (Fla. 3d DCA 1998); New Hampshire Ins. Co., Inc. v. Royal Ins. Co., 559 So. 2d 102 (Fla.
4th DCA 1990).
Therefore, in determining what sanctions are appropriate, the court should consider (1) the
willfulness or bad faith of the responsible party, (2) the extent of prejudice suffered by the other
party, and (3) what is required to cure the prejudice.
c. Defendant’s Duty to Preserve Evidence
In 2015 the Florida Supreme Court in League of Women Voters of Florida v. Detzner, 172
So. 3d 363 (Fla. 2015), held that there is a duty to preserve evidence when there is reasonable
anticipation of litigation. In determining whehter the Florida Legislature had a duty to preserve
evidence the Florida Supreme court held that, although the Legislature's failure to preserve records
apparently did not violate a specific rule of legislative procedure regarding records retention—
even though at least some of these records likely did have sufficient legal significance to have
warranted their retention—Florida courts have, in any event, found a duty to preserve evidence in
other circumstances when a party should reasonably foresee litigation. See Am. Hospitality Mgmt.
Co. of Minn. v. Hettiger, 904 So.2d 547, 549 (Fla. 4th DCA 2005) (noting holdings that ‘a
defendant could be charged with a duty to preserve evidence where it could reasonably have
foreseen the claim’)”. Detzner 172 So. 3d at 391 (internal citations included).
The Florida Supreme Court went on to specifically hold:
Even in the absence of a legal duty, though, the spoliation of evidence
results in an adverse inference against the party that discarded or destroyed the
evidence. As this Court explained in Martino v. Wal–Mart Stores, Inc., 908 So.2d
342, 346 (Fla. 2005), Florida courts may impose sanctions, including striking
pleadings, against a party that intentionally lost, misplaced, or destroyed evidence,
and a jury could infer under such circumstances that the evidence would have
contained indications of liability. If the evidence was negligently destroyed, a
rebuttable presumption of liability may arise. Id. at 347. In other words, as
recognized by the Fourth District Court of Appeal, “an adverse inference may arise
in any situation where potentially self-damaging evidence is in the possession of a
party and that party either loses or destroys the evidence.” Golden Yachts, Inc. v.
Hall, 920 So.2d 777, 781 (Fla. 4th DCA 2006) (quoting Martino v. Wal–Mart
Stores, Inc., 835 So.2d 1251, 1257 (Fla. 4th DCA 2003), approved, 908 So.2d 342);
see also Nationwide Lift Trucks, Inc. v. Smith, 832 So.2d 824, 826 (Fla. 4th DCA
2002) (stating that “[c]ases in which evidence has been destroyed, either
inadvertently or intentionally, are discovery violations” that may be subject to
sanctions).
The trial court was, therefore, justified in drawing an adverse inference
against the Legislature.
Detzner 172 So. 3d at 391 (emphasis added)(internal citations included).
d. The Valcin Presumption
In Public Health Trust of Dade County v. Valcin, 507 So. 2d 596 (Fla. 1987), the Florida
Supreme Court was confronted with a medical malpractice action against a hospital commenced
by a plaintiff whose ability to proceed with the lawsuit was hindered because the hospital could
not produce the records of her surgical procedure. The court held that this problem could be
resolved through the use of a rebuttable presumption that shifts the burden of proof.
Therefore, where evidence necessary to prove a prima facie case is missing due to the
actions of the opposing party, the Valcin presumption shifts the burden of proof to ensure that a
jury decides the issue of negligence. Id. at 600.
In order for a party to be entitled to the Valcin presumption, the trial court must first decide
whether the allegedly missing evidence should have or did exist. Then, the court must determine
whether the missing evidence hindered the plaintiff's ability to proceed. Jordan ex rel. Shealey v.
Masters, 821 So. 2d 342 (Fla. 4th DCA 2002); see also Osmulski v. Oldsmar Fine Wine, Inc., 93
So. 3d 389 (Fla. 2d DCA 2012).
e. The Adverse Inference
It is important to note that an adverse inference from the failure to produce evidence is
different from the Valcin rebuttable presumption. If the actions of the opposing party cause
evidence to be lost that is necessary to prove a prima facie case, the Valcin presumption shifts the
burden of proof to ensure that a jury decides the issue of negligence. In essence, the Valcin
presumption supplies an essential element of the case—negligence—and shifts to the defendant
the burden of proving that he or she was not negligent. The adverse inference merely allows
counsel to argue to the jury the inference that the evidence was lost because it was damaging to
the opposing party's case. Martino v. Wal-Mart Stores, Inc., 835 So. 2d 1251 (Fla. 4th DCA 2003),
decision approved, 908 So. 2d 342 (Fla. 2005); Jordan ex rel. Shealey v. Masters, 821 So. 2d 342
(Fla. 4th DCA 2002).
When a party fails to produce evidence within his control, an adverse inference may be
drawn that the withheld evidence would be unfavorable to the party failing to produce it. However,
the missing evidence must be relevant and the party seeking the inference must establish that it has
been prejudiced by the loss of the evidence. New Hampshire Ins. Co., Inc. v. Royal Ins. Co., 559
So. 2d 102 (Fla. 4th DCA 1990). Unlike the Valcin rebuttable presumption of negligence, the
adverse inference is not based on a strict legal “duty” to preserve evidence. Martino v. Wal-Mart
Stores, Inc., 835 So. 2d 1251 (Fla. 4th DCA 2003), decision approved, 908 So. 2d 342 (Fla. 2005).
Rather, the adverse inference arises in cases where evidence that is potentially damaging is in the
possession of a party and that party either loses or destroys it.
II. Analysis
A. DEFENDANT’S FAILURE TO PRESERVE VIDEO SURVEILLANCE IS
HAMPERING THE PLAINTIFF’S ABILITY TO PROVE HIS CASE
Pursuant to Jordan ex rel. Shealey v. Masters, in order for a court to exercise a ruling due
to the spoliation of evidence, the court must find that 1) the evidence existed at one time, 2) the
spoliator had a duty to preserve the evidence, and 3) that the evidence was critical to an opposing
party being able to prove its prima facie case. Jordan ex rel. Shealey v. Masters, 821 So. 2d 342,
347 (Fla. 4th DCA 2002). See, e.g., Hagopian v. Publix Supermarkets, Inc., 788 So. 2d 1088, 1090
(Fla. 4th DCA 2001); Fed. Ins. Co. v. Allister Mfg. Co., 622 So. 2d 1348, 1351 (Fla. 4th DCA
1993).
There is absolutely no dispute that Defendant had a duty to preserve the surveillance footage of
this incident as Plaintiff through her e-mail to Inis Alvarado infromed her that there was a slip and
fall incident in the laundry room. Moreover, Ms. Alvarado on her own volition and at the
suggestion of her boss, Martha Torres, decided to attempt to “verify” the fall, leaking laundry
machine, and dirty floor. From that very moment, Defenadnt could apprecaite how important the
video footage of the laundry room was on the day of his incident. A spoliation instruction,
particularly an adverse inference instruction is warranted as Plaintiff can satisfy each of the
elements provided by Jordan ex rel. Shealey v. Masters.
There is uncontroverted evidence that Defendant could have:
1) could have saved all of the video footage from August 7 (especially at 7:00 a.m. when
she looked at the video footage and claims nothing was on the floor);
2) could have saved video of Plaintiff’s fall, but did not;
3) could have saved the footage which captured the clean-up of the puddle that Plaintiff
slipped in, but did not;
4) the cameras were not malfunctioning on the day of the incident and are not Motion
detected like Ms. Alvarado stated as both the videos provided do not conform to her description
of how the video footage records;
5) Ms. Alvarado decided on her own volition what to save and what not to save and blames
her failure to save the 24 hours of footage before and after the incident was a “mistake”; and
6) Failure to save any video footage of the laundry room from 7:00 a.m. to 12:29 p.m. has
completely precluded any party to this case from being able to tell how long the dirty substance
was on the floor of the laundry room prior to Plaintiff’s fall.
Based on Ms. Alvarado’s testimony, it appears that all three elements in Jordan ex rel.
Shaley v. Master are met in this case:
1) The evidence, specifically video footage beginning at 7:00 a.m. existed at some point.
The footage was not saved. It has been destroyed.
2) She a had duty to preserve evidence based on case law, Defendant’s policies, and
Defendant’s Notice of Lawsuit and Spoliation and Preservation of Evidence Letter.
3) The missing evidence is critical to Plaintiff being able to prove its prima facie case.
The video footage from the day of the incident is critical to establish liability. More
specifically, it is important for establishing “constructive notice” to show that the
substance on the ground was there for a sufficient length of time. Further, Plaintiff
contends that there were employees close by the laundry room at the time of her fall.
The video would also show how the substance got on the ground, how long it took to
accumulate, and who cleaned it up.
Plaintiff is entitled to an adverse inference as a result of Defendant’s loss of or destruction of
the video and a Valcin instruction. There is no evidence in this case that any inspection was done of
the laundry room by any of Defendant’s employee from 5:00 p.m. Friday, August 5, 2022 through
Sunday, August 7, 2022, as Defendant claims it does not have employees that work or clean the
laundry room on the weekends.
III. Conclusion
Due to Defendant’s unilateral destruction of the physical evidence in this case, Plaintiff
requests the Court enter an Order granting Plaintiff’s Motion finding that Defendant negligently
spoliated evidence in the form of the CCTV footage which was solely in Defendant’s possesion,
custody, and control and which depicted 1) the subject incident; 2) the area of which the incident
occurred; 3) Plaintiff the entire time she was in the laundry room and 4) the series of events leading
up to and culminating in the subject incident. Plaintiff also requests the Court enter an Order
finding that Defendant was on 1) actual notice of a potential claim at the time the CCTV video
footage was destroyed; and 2) that the CCTV video footage was critical to Plaintiff being able to
prove her prima facie case. Plaintiff requests this Court find that issuance of a jury instruction
permitting the jury to draw an adverse inference from Defendant’s spoliation of the CCTV footage
at issue in this case approprairate. Plaintiff also requests this Court find that the jury be provided
with the Valcin presumption as well and grant any other relief it deems necessary and proper.
WHEREFORE, Plaintiff requests this Court grant Plaintiff’s Motion for Spoliation,
Adverse Inference, Valcin Instruction and Motion for Sanctions and such other relief
this Court deems just and proper.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished to
Brian J. Aull, Esquire, Cole, Scott & Kissane, P.A. (Counsel for Defendant), 4686 Sunbeam
Road, Jacksonville, FL 32257; brian.aull@csklegal.com and April.jarvis@csklegal.com; by e-mail
only via Florida’s E-Filing Portal in accordance with Rule 2.516, Florida Rules of Administration,
this 8th day of June, 2023.
MORGAN & MORGAN
_______________________________________
COREY J. PORTNOY, ESQUIRE
Florida Bar No. 118859
501 Riverside Avenue, Suite 1200
Jacksonville, FL 32202
Primary Email: cportnoy@forthepeople.com
Secondary Email: jenniferdaniel@forthepeople.com
cforbes@forthepeople.com
Telephone: (904) 361-4441
Fax: (904) 361-7241
Attorney for Plaintiff
EXHIBIT A
EXHIBIT B
From: Inis Alvarado
Sent: Wednesday, January 18, 2023 9:11 AM
To: Martha Torres
Subject: Fwd: Fall in laundry room
Forwarded message
From: Inis Alvarado
Date: Mon, Aug 8, 2022 at 3:29 PM
Subject: Re: Fall in laundry room
To: Amber Bassett
Hello Amber
I'm sorry for hearing that I hope you are improving. I will check what I can do.
Thanks for letting me know!
Inis
Property Manager
On Mon, Aug 8, 2022 at 9:20 AM Amber Bassett wrote:
Good morning,
I'm writing to you in regards to an incident that happened yesterday, Sunday August 7th at 12:29pm. We were doing
laundry in the laundry room, and when we walked in, the floor was soaked. Sarah ended up slipping and falling. She hit
her right knee hard on the floor. Her knee was instantly swollen with a golf sized egg, and she couldn't feel her leg. We
immediately went to the emergency room to have X-rays done. Luckily, she wasn't hurt worse. Nothing is broken. In
the meantime, she has to follow up with the primary care doctor.
Unfortunately, she doesn't have health insurance so this is going to be a nice size bill that was uncalled for.
What can be done to make this situation right?
I have attached some pictures of the floor.
If you have any questions, please feel free to call her at 904-705-3673.
Amber and Sarah (501)
EXHIBIT C
L
EXHIBIT D – VIDEO
LINK TO VIDEO
https://api.079770162388.genesisapi.com/v1/share/s/s4shWrKZU00pGXyfV2G_j9MMqWaWZ
SFN3n-JrWyd63k
Page 1
1 IN THE CIRCUIT COURT, FOURTH
JUDICIAL CIRCUIT, IN AND FOR
2 DUVAL COUNTY, FLORIDA
3 CASE NO.: 16-2022-CA-6621
DIVISION: CV-C
4
SARAH STAMBLER,
5
Plaintiff,
6
vs.
7
OPTIVO GROUP, LLC d/b/a THE
8 STERLING AT SAN MARCO,
9 Defendant.
10 __________________________________/
11 REMOTE
VIDEOTAPED
12 DEPOSITION OF: INIS ALVARADO
13 DATE: MONDAY, MAY 22, 2023
14 TIME: 9:17 A.M. - 11:05 A.M.
15 STENOGRAPHICALLY
REPORTED BY: STACIA A. HARPER, FPR
16
17
18
19
20
21
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24
25
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EXHIBIT E
Page 2 Page 4
1 A P P E A R A N C E S: 1 STIPULATIONS
2 COREY J. PORTNOY, ESQUIRE
(Appearing via videoteleconference.) 2 It is hereby stipulated and agreed by and between
3 OF: Morgan & Morgan 3 the counsel for the respective parties and the deponent
76 South Laura Street
4 Suite 1100
4 that the reading and signing of the deposition
Jacksonville, Florida 32202 5 transcript be reserved.
5 904-361-4441, FAX-904-361-7241 6 ------
Cportnoy@forthepeople.com
6 APPEARING ON BEHALF OF THE PLAINTIFF 7
7 BRIAN AULL, ESQUIRE 8
(Appearing via videoteleconference.)
8 OF: Cole, Scott & Kissane, P.A.
9
4686 Sunbeam Road 10
9 Jacksonville, Florida 32257 11
904-672-4070, FAX-904-672-4050
10 Brian.aull@csklegal.com 12
APPEARING ON BEHALF OF THE DEFENDANT 13
11
12
14
ALSO PRESENT: 15
13 CHRIS HERNANDEZ, VIDEOGRAPHER 16
JONI AZULAY, INTERPRETER
14 ------ 17
15 18
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22 23
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Page 3 Page 5
1 INDEX 1 PROCEEDINGS
2
3 TESTIMONY OF INIS ALVARADO 2 *********
4 DIRECT EXAMINATION BY MR. PORTNOY............... 6 3 THE VIDEOGRAPHER: We're on the record, date is
5 CERTIFICATE OF OATH OF INTERPRETER................... 57 4 May 22, 2023, time is 9:17 a.m. This is media unit 1
6 CERTIFICATE OF REPORTER.............................. 58
7 NOTIFICATION LETTER.................................. 59 5 of the videotaped deposition of Inis Alvarado. Will
8 ERRATA SHEET......................................... 60 6 counsel please state their appearances for the
9
7 record.
10
11 8 MR. PORTNOY: Good morning. Corey Portnoy on
INDEX OF EXHIBITS 9 behalf of the plaintiff, Sarah Stambler.
12
PLAINTIFF'S EXHIBITS
10 MR. AULL: Brian Aull on behalf of OPTIVO
13 11 Group, the defendant.
EXHIBIT 1............................................ 20 12 THE VIDEOGRAPHER: Okay. Will our court
14 (E-mail with Photographs)
15 EXHIBIT 2............................................ 25 13 reporter please swear in the interpreter.
(Video Footage) 14 COURT REPORTER: Do you solemnly swear or
16 15 affirm that you will truly and accurately translate
EXHIBIT 3............................................ 28
17 (Video Footage) 16 the testimony given in this matter from English to
18 EXHIBIT 4............................................ 39 17 Spanish and from Spanish to English to the best of
(Five Photographs)
18 your ability?
19
EXHIBIT 5............................................ 44 19 INTERPRETER: I do.
20 (Maintenance Plan) 20 THEREUPON
21 EXHIBIT 6............................................ 44
(Duties and Responsibilities of a Groundskeeper)
21 Joni Azulay,
22 22 the interpreter, was duly sworn to truly and accurately
EXHIBIT 7............................................ 54 23 translate from English to Spanish and Spanish to
23 (Inspection Log)
24 24 English.
25 ------ 25 COURT REPORTER: Would you please raise your
2 (Pages 2 - 5)
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Page 6 Page 8
1 right hand? 1 the court reporter will not be able to take a clean
2 Do you solemnly swear or affirm that the 2 record down so we may ask you, is that a yes or a no?
3 testimony you're about to give is the truth, the 3 A. Okay.
4 whole truth and nothing but the truth? 4 Q. If you need a break at any time, you're
5 THE WITNESS: Yes. 5 entitled to take as many breaks as you want. It's just
6 THEREUPON 6 before you take a break if there's a question pending,
7 INIS ALVARADO 7 you have to answer the question.
8 was called as a witness and, having first been duly 8 A. Okay.
9 sworn, testified through the interpreter, Joni Azulay, 9 Q. Are you under the influence of any medication,
10 as follows: 10 drugs, or alcohol that would impair your ability to
11 DIRECT EXAMINATION 11 testify today?
12 BY MR. PORTNOY: 12 A. No.
13 Q. Good morning, ma'am. Is there anyone in the 13 Q. You understand that earlier today you took an
14 room with you currently? 14 oath to tell the truth, correct?
15 A. Miguel Calderon. 15 A. Yes.
16 MR. PORTNOY: Okay. Brian, I'm going to ask 16 Q. Do you understand that failure to tell the
17 that he leave the room. I know the rule is anyone 17 truth while under oath is punishable by a third-degree
18 can be present. Are you okay with asking him to 18 felony?
19 leave the room? 19 A. Yes.
20 MR. AULL: Yeah. He can leave the room. He's 20 Q. Did you do anything to prepare for today's
21 a witness. That's fine. 21 deposition?
22 MR. PORTNOY: Will you ask Miguel to please 22 A. No.
23 leave the room? 23 Q. Did you review any photographs prior to today's
24 THE WITNESS: Yes. 24 deposition at any time?
25 BY MR. PORTNOY: 25 A. No.
Page 7 Page 9
1 Q. If you could, ma'am, would you just turn your 1 Q. In your entire life have you ever reviewed any
2 camera to show that he's left the room? 2 photographs of the laundry room and the area where Sarah
3 A. (Witness complies.) 3 Stambler is believed to have fallen on August 7, 2000 --
4 Q. Thanks so much. Ma'am, if you could, would you 4 2022?
5 please state your full name for the record? 5 A. Yes.
6 A. Inis Alvarado. 6 Q. When did you first review those photographs?
7 Q. And, Inis, if you could, would you please state 7 A. On August 7th in 2022.
8 your date of birth? 8 Q. I don't want to know about any conversation you
9 A. April 2, 1989. 9 might have had with your attorneys, but did you speak
10 Q. Where do you currently live? 10 with Mr. Aull prior to today's deposition?
11 A. 8737 Galveston Avenue, Jacksonville, Florida 11 A. No.
12 32211. 12 Q. Who did you speak to, if anyone, prior to
13 Q. Is that a property that is owned by OPTIVO 13 today's deposition about this case?
14 Group, LLC? 14 A. With Martha Torres, my boss.
15 A. No. 15 Q. When is the last time that you spoke with
16 Q. Have you ever given a deposition before? 16 Martha Torres about this case?
17 A. No. 17 A. Friday, May 19, 2023.
18 Q. There's a few ground rules for a deposition. 18 Q. What did you discuss --
19 I'm going to go through those now. 19 MR. AULL: Corey -- Corey, let me jump in here.
20 A. Okay. 20 There may be a disconnect about the issue of
21 Q. As you can see, there's a court reporter taking 21 deposition, but I was present when -- with her
22 down everything that is being said today so it's really 22 conversation with Martha on Friday. So I just need
23 important that you answer in yeses or noes. 23 to clarify that and maybe we need to reframe the
24 A. Okay. 24 question for her.
25 Q. If you shake your head or say huh-uh or huh-uh, 25 MR. PORTNOY: Thank you, Brian.
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1 MR. AULL: Yeah. I didn't want it to get off 1 LLC?
2 the rails, and I just think there may be a little 2 A. June 26, 2022. I apologize. It's January 26,
3 bit of a disconnect. I wanted to be clear. She did 3 2022.
4 meet with me with Martha. 4 Q. Where did you work before that?
5 MR. PORTNOY: Okay. 5 A. I worked for an employment agency by the name
6 BY MR. PORTNOY: 6 of Remedy and Safari.
7 Q. Earlier today there was an individual in the 7 Q. What is your current role with OPTIVO?
8 room when we started this deposition. What was his 8 A. Manager.
9 name? 9 Q. Is that also called the property manager
10 A. Miguel Calderon. 10 sometimes?
11 Q. Is Miguel Calderon still employed by OPTIVO 11 A. Yes.
12 Group, LLC? 12 Q. And what's -- back in August of 2000 -- 2022,
13 A. Yes. 13 what was your schedule?
14 Q. On Friday when you met with Martha, did you 14 A. Eight to five.
15 review any video footage of the laundry room that was 15 Q. Did that include weekends as well?
16 saved from August 7th or August 8, 2000 -- 2022? 16 A. No. Monday through Friday.
17 A. No. 17 Q. Is there someone who is an assistant property
18 Q. In your entire lifetime, have you ever reviewed 18 manager at the property?
19 any video footage that was saved that pertains to the 19 A. No.
20 fall that took place on August 7, 2000 -- 2022? 20 Q. When you are not present, who is responsible
21 A. Yes. 21 for your duties?
22 Q. When was the first time you reviewed that 22 A. Here at corporate.
23 footage? 23 Q. It broke up there. Can you repeat, please?
24 A. August 8, 2022. 24 THE INTERPRETER: Here at corporate.
25 Q. Were you the individual that saved that video 25 BY MR. PORTNOY:
Page 11 Page 13
1 footage? 1 Q. And where are you currently doing this
2 A. Yes. 2 deposition from?
3 Q. Do you have any plans to move from the address 3 A. In the corporate office.
4 located on the Galveston Road within the next year? 4 Q. Does OPTIVO have any employees present ever on
5 A. Yes. 5 the weekends at The Sterling at San Marco apartment
6 Q. Where do you plan to move? 6 complex?
7 A. At this moment, I'm in the process of trying to 7 A. No. Only when a tenant calls with an
8 purchase a home, and I hope to be able to move by the 8 emergency.
9 end of the year. 9 Q. And throughout today's deposition, I might
10 Q. Is that home located in Jacksonville, Florida? 10 refer to the premises as the property. And when I do
11 A. Yes. 11 that, I want you to know that I'm referring to the
12 Q. Do you know the address for that location? 12 property located at 2943 Spring Park Road, Jacksonville,
13 A. I have to look it up in my phone. 13 Florida 32207. Is that fair?
14 Q. Could you, please? 14 A. Yes.
15 A. 2409 Townsend Boulevard, Jacksonville, Florida 15 Q. As the property manager, is one of your
16 32211. 16 responsibilities to ensure that the property is kept
17 Q. This is a question that we ask all the people 17 clean?
18 who sit in the chair like you are today. Have you ever 18 A. Yes.
19 been arrested in your life? 19 Q. What are your responsibilities as the property
20 A. No. 20 manager?
21 Q. Have you ever been convicted of a felony? 21 A. I address any complaints brought forth by any
22 A. No. 22 tenant. I rent the apartments. I collect the rent, and
23 Q. Have you ever been terminated by an employer? 23 I maintain the common areas; clean and organized.
24 A. No. 24 Q. Would you agree that one of your
25 Q. How long have you worked for the OPTIVO Group, 25 responsibilities is to make sure that the employees at
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1 the property are doing their job? 1 Q. And when you -- is there anyone that would do
2 A. Yes. 2 any type of inspection on a Saturday or a Sunday to make
3 Q. Would you also agree that it's one of your 3 sure that the laundry room is clean?
4 responsibilities to make sure that the property is kept 4 A. No.
5 safe? 5 Q. On Friday, August -- pardon me one moment.
6 A. Yes. 6 Would it be fair to say that on August 5, 2000
7 Q. And ultimately -- you said it was your -- I 7 -- 2022 at 8 a.m., that was the last time the laundry
8 believe you said it was one of your responsibilities to 8 room was inspected before Saturday, August 6, 2000 --
9 maintain the common areas of the apartment complex. 9 2022?
10 Does that mean that you would agree it's your 10 A. The laundry is inspected at 8 a.m. and at
11 responsibility to make sure that the floors of the 11 5 p.m. before we depart for the day.
12 common areas are kept free of debris? 12 Q. And on August 5th -- Friday, August 5th at
13 A. Yes. 13 5 p.m. who was the last individual to inspect the
14 Q. Back in August of 2000 -- 2022, what were 14 laundry room that day?
15 OPTIVO Group, LLC policies for inspecting the common 15 A. Miguel Calderon.
16 areas? 16 Q. Now, you're aware that there's cameras in the
17 A. We start with the maintenance and the 17 laundry room, correct?
18 groundskeepers. We do rounds to make sure that 18 A. Yes.
19 everything is in order. 19 Q. And how many cameras are there in the laundry
20 Q. And when you say the groundskeeper, who would 20 room?
21 that be Monday through Friday back in August of 2000 -- 21 A. Only one.
22 2022? 22 Q. And would you agree that on August 5, 2000 --
23 A. Miguel Calderon. 23 2022, it would've been -- the video camera would have
24 Q. You've also referenced a maintenance tech. Who 24 captured Miguel inspecting the laundry room in the
25 would've that have been back in August? 25 morning, correct?
Page 15 Page 17
1 A. Arnaldo Carillo. 1 A. The cameras do not videotape before seven.
2 Q. And when would these safety sweeps or 2 They only are motion sensitive.
3 inspections occur in the mornings Monday through Friday? 3 Q. That doesn't answer my question. My question
4 A. At 8:00 a.m. 4 is would the camera have captured Miguel inspecting the
5 Q. Okay. And how often would they occur Monday 5 laundry room at 8 a.m. on August 5th if he walked in
6 through Friday? 6 there?
7 A. It's done Monday through Friday. 7 A. Yes.
8 Q. Once a day? twice a day? three times a day? 8 Q. And when he inspected the laundry room on
9 once an hour? twice an hour? How often throughout the 9 August 5th for a second time, the camera would have
10 day? 10 captured him walk into the laundry room as well?
11 A. One time
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Filing # 174935810 E-Filed 06/08/2023 04:36:51 PM IN THE CIRCUIT COURT, FOURTH JUDICIAL CIRCUIT, IN AND FOR DUVAL COUNTY, FLORIDA CASE NO.: 16-2022-CA-6621 DIVISION: CV-C SARAH STAMBLER, Plaintiff, vs. OPTIVO GROUP, LLC d/b/a THE STERLING AT SAN MARCO, Defendant. ___________________________________/ PLAINTIFF’S MOTION FOR SPOLIATION, ADVERSE INFERENCE AND VALCIN INSTRUCTION AND MOTION FOR SANCTIONS COMES NOW, Plaintiff, SARAH STAMBLER, by and through her undersigned counsel, hereby files her Motion for Spoliation, Adverse Inference, Valcin Instruction and Motion for Sanctions and states as follows: STATEMENT OF FACTS 1. This action arises from a slip and fall incident that took place in the common area laundry room of Defendant’s apartment complex on August 7, 2022. While Plaintiff was walking to do her laundry, she slipped and fell in a giant puddle that was filled with mud, dirt, and track prints. See Plaintiff, Sarah Stambler’s deposition at p. 49:17, attached hereto as Exhibit “A.” The liquid puddle was coming from a washing machine that was leaking. Id. After Plaintiff fell, Plaintiff took photographs of the puddle and dirty substance on the floor. See Photographs of the substance attached hereto as Exhibit “B.” ACCEPTED: DUVAL COUNTY, JODY PHILLIPS, CLERK, 06/09/2023 04:07:37 PM 2. After Plaintiff’s fall, Plaintiff sent an e-mail to Defendant’s property manager, Inis Alvarado, to report her fall and the condition of the laundry room. See E-mail correspondence dated August 7, 2022, attached hereto as Exhibit “C.” 3. Inside the laundry room where Plaintiff fell, Defendant has a video surveillance camera that captures activity inside the laundry room including the area where Plaintiff fell. See Video of laundry room attached hereto as Exhibit “D.” See Deposition testimony of Inis Alvarado at p. 16:16-18, attached hereto as Exhibit “E.” 4. Ms. Alvarado is the only individual at Defendant’s apartment complex that has access to the security surveillance cameras located in the laundry room. See Exhibit “E” at p. 32:10-12. 5. Approximately one hour after learning of Plaintiff’s fall, Ms. Alvarado contacted Defendant’s Chief Executive Officer, Martha Torres, to inform her of Plaintiff’s slip and fall. Ms. Torres instructed Ms. Alvarado to “verify the fall.” Ms. Alvarado claims to verify the fall, she went back to look at the surveillance footage of the laundry room. Id at p.18:1-5. Ms. Alvarado claims that Ms. Torres even reminded her to save video footage as part of the “verification process.” Id at p.36:1-7. 6. Defendant has a company policy that requires its employees, specifically Inis Alvarado, to save 24 hours of video footage prior to an incident and 24 hours of video footage after an incident such as a slip and fall. Id at p.32:15-25. 7. Ms. Alvarado concedes that her failure to preserve the video footage was a violation of company policy and a “mistake”. Id. at p.33:1-10. Further, she claims that while in the process of saving the video she became distracted when people arrived to her office and therefore forgot to save the video Id at p.36:4.1 8. Ironically, Ms. Alvarado chose to save some video footage and chose not to save pertinent video footage which would reveal the following: 1) the last time the area was inspected by Defendant’s employees; 2) the actual fall; and 3) the clean-up of the giant puddle and liquid. Ms. Alvarado only decided to save video footage of Plaintiff’s fiancé returning to the laundry room to finish a load of laundry several hours after Plaintiff’s fall and a short clip of Plaintiff returning to the laundry room the following day. Nothing prevented her from saving video footage prior to Plaintiff’s fall, the actual fall, or the clean-up of the giant dirty puddle other than her “mistake.” 9. The video footage of any prior inspection completed prior to Plaintiff’s August 7, 2022 fall, Plaintiff’s slip and fall incident, and the clean-up of the giant dirty puddle of liquid no longer exists. 10. Ms. Alvarado did in fact review the surveillance footage of August 6, 2022, the day prior to Plaintiff’s fall to verify whether or not there was a leak in the laundry room. Id. at p.17:17- 25. She did not save the footage she reviewed. She claims that she didn’t save this footage because she “did not expect a situation to happen such as the one that happened.”2 Ms. Alvarado already knew about Plaintiff’s slip and fall before she started reviewing the video footage from August 6, 2022. Ms. Alvarado stated that when she reviewed the footage from the day of Plaintiff’s fall, August 7, 2020, she started at 7:00 a.m. and there was nothing on the floor. Ms. Alvarado didn’t save 1 As further explained, this is completely disingenuous as Ms. Alvarado decided to go back and save video footage several hours after Plaintiff’s fall on the same date. 2 As indicated below, this is a completely disingenuous statement as the whole reason Ms. Alvarado even knew to go back and review the video footage was because Plaintiff reported a slip and fall that occurred in the laundry room. the video because it didn’t occur to her to do so. 3 Ms. Alvarado testified that she didn’t watch any video beyond 7:00 a.m. to 12:29 p.m. Id. 24:12-23.4 Plaintiff’s fall occurred at 12:29 p.m. 11. Ms. Alvarado claims that she didn’t save the footage of Plaintiff’s fall because the camera didn’t detect Plaintiff’s fall. Id. at 27:9-11.5 Amazingly, the location of where Plaintiff fell is detected in both of the surveillance videos Ms. Alvarado actually saved. See Exhibit D. 12. The cameras were not defective on the day of the incident. See Exhibit E at 27:14- 23. Ms. Alvarado claims that the cameras only detect motion that occurs starting at the end of the dryers. Id. Ms. Alvarado was then shown video footage that she saved where a woman did not walk to the end of the dryers, yet the camera captured the footage. Id. at 28-1-4. 6 13. Ultimately, Ms. Alvarado conceded that she voluntarily chose not to save any video footage from the day of the incident beginning at 7:00 a.m. to 12:29 p.m. See Ms. Alvarado’s testimony below: Q. You would agree with me that you voluntarily chose not to save any video footage from 7:00 a.m. to 12:29 p.m., correct? A. True. Q. And you voluntarily chose not to save any video from 12:20 p.m. until the video footage that you saved from 13:24 On August 7, 2022 at 1:24 p.m. A. True. Q. And why is that? A. It didn’t cross my mind, honestly. 3 This is another disingenuous comment as, Ms. Alvarado testified that it was company policy and Ms. Torres instructed her to do so. 4 This is also disingenuous because Ms. Alvarado went back and saved video footage 1:24 on August 7, 2022 and video footage on August 8, 2022 at 5:42 p.m. 5 How does Ms. Alvarado know this information if she did not review any of the footage after 7:00 a.m. to 12:29 p.m.? 6 This too is another disingenuous comment about Ms. Alvarado’s handling of the video footage on August 7, 2022. Q. As the property manager, do you believe it is important to know how long that muddy substance was on the ground before the woman fell on August 7, 2022. A. True. Q. And do you --- you cant sit here and say whether the substance was on the ground more than an hour before she fell, can you? A. No. I can’t say with certainty. Id. at 30:1:25. MEMORANDUM OF LAW I. Legal Authority a. First Party v. Third Party Spoliation of Evidence as a Cause of Action The Third District court of Appeals in Bondu v. Gurvich, 473 So. 2d 1307 (Fla. 3d DCA 1984) recognized what is now commonly referred to as a cause of action for spoliation of evidence. The essential elements of a cause of action for negligent spoliation of evidence are 1) the existence of a potential civil cause of action; 2) a legal or contractual duty to preserve evidence which is relevant to the potential cause of action; 3) destruction of that evidence; 4) significant impairment in the ability to prove the cause of action; 5) a causal relationship between the destruction of the evidence and the inability to prove the cause of action; and 6) damages. Jost v. Lakeland Regional Medical Center, Inc., 844 So. 2d 656 (Fla. 2d DCA 2003); Hagopian v. Publix Supermarkets, Inc., 788 So. 2d 1088 (Fla. 4th DCA 2001); Brown v. City of Delray Beach, 652 So. 2d 1150 (Fla. 4th DCA 1995) Continental Ins. Co. v. Herman, 576 So. 2d 313 (Fla. 3d DCA 1990). In 2005, the Florida Supreme Court in Martino v. Wal-Mart Stores Inc., 908 So. 2d. 342 (Fla. 2005) held the remedy against a first-party defendant for spoliation of evidence is not an independent cause of action for spoliation of evidence, and instead the available remedies are discovery sanctions and a rebuttable presumption of negligence for the underlying tort, disapproving of Bondu v. Gurvich, 473 So.2d 1307. b. Remedies for Spoliation as a Discovery Violation In cases where evidence has been lost or destroyed, either intentionally or inadvertently, sanctions for discovery violations may be appropriate pursuant to Fla. R. Civ. P. 1.380. Appropriate sanctions under the rule for losing or destroying evidence include striking evidence or testimony, striking pleadings, striking defenses, dismissal with prejudice, and entering a default. In Sponco Mfg., Inc. v. Alcover, 656 So. 2d 629 (Fla. 3d DCA 1995) (citations and footnotes omitted), the court discussed the standard to determine the appropriate sanctions to impose on a party who fails to preserve evidence: What sanctions are appropriate when a party fails to preserve evidence in its custody depends on the willfulness or bad faith, if any, of the party responsible for the loss of the evidence, the extent of prejudice suffered by the other party or parties, and what is required to cure the prejudice. Drastic sanctions, including default, are appropriate when a defendant alters or destroys physical evidence, and when the plaintiff has demonstrated an inability to proceed without such evidence. Sponco Mfg., Inc. v. Alcover, 656 So. 2d 629, 630 (Fla. 3d DCA 1995). See also Harrell v. Mayberry, 754 So. 2d 742 (Fla. 2d DCA 2000); DeLong v. A-Top Air Conditioning Co., 710 So. 2d 706 (Fla. 3d DCA 1998); New Hampshire Ins. Co., Inc. v. Royal Ins. Co., 559 So. 2d 102 (Fla. 4th DCA 1990). Therefore, in determining what sanctions are appropriate, the court should consider (1) the willfulness or bad faith of the responsible party, (2) the extent of prejudice suffered by the other party, and (3) what is required to cure the prejudice. c. Defendant’s Duty to Preserve Evidence In 2015 the Florida Supreme Court in League of Women Voters of Florida v. Detzner, 172 So. 3d 363 (Fla. 2015), held that there is a duty to preserve evidence when there is reasonable anticipation of litigation. In determining whehter the Florida Legislature had a duty to preserve evidence the Florida Supreme court held that, although the Legislature's failure to preserve records apparently did not violate a specific rule of legislative procedure regarding records retention— even though at least some of these records likely did have sufficient legal significance to have warranted their retention—Florida courts have, in any event, found a duty to preserve evidence in other circumstances when a party should reasonably foresee litigation. See Am. Hospitality Mgmt. Co. of Minn. v. Hettiger, 904 So.2d 547, 549 (Fla. 4th DCA 2005) (noting holdings that ‘a defendant could be charged with a duty to preserve evidence where it could reasonably have foreseen the claim’)”. Detzner 172 So. 3d at 391 (internal citations included). The Florida Supreme Court went on to specifically hold: Even in the absence of a legal duty, though, the spoliation of evidence results in an adverse inference against the party that discarded or destroyed the evidence. As this Court explained in Martino v. Wal–Mart Stores, Inc., 908 So.2d 342, 346 (Fla. 2005), Florida courts may impose sanctions, including striking pleadings, against a party that intentionally lost, misplaced, or destroyed evidence, and a jury could infer under such circumstances that the evidence would have contained indications of liability. If the evidence was negligently destroyed, a rebuttable presumption of liability may arise. Id. at 347. In other words, as recognized by the Fourth District Court of Appeal, “an adverse inference may arise in any situation where potentially self-damaging evidence is in the possession of a party and that party either loses or destroys the evidence.” Golden Yachts, Inc. v. Hall, 920 So.2d 777, 781 (Fla. 4th DCA 2006) (quoting Martino v. Wal–Mart Stores, Inc., 835 So.2d 1251, 1257 (Fla. 4th DCA 2003), approved, 908 So.2d 342); see also Nationwide Lift Trucks, Inc. v. Smith, 832 So.2d 824, 826 (Fla. 4th DCA 2002) (stating that “[c]ases in which evidence has been destroyed, either inadvertently or intentionally, are discovery violations” that may be subject to sanctions). The trial court was, therefore, justified in drawing an adverse inference against the Legislature. Detzner 172 So. 3d at 391 (emphasis added)(internal citations included). d. The Valcin Presumption In Public Health Trust of Dade County v. Valcin, 507 So. 2d 596 (Fla. 1987), the Florida Supreme Court was confronted with a medical malpractice action against a hospital commenced by a plaintiff whose ability to proceed with the lawsuit was hindered because the hospital could not produce the records of her surgical procedure. The court held that this problem could be resolved through the use of a rebuttable presumption that shifts the burden of proof. Therefore, where evidence necessary to prove a prima facie case is missing due to the actions of the opposing party, the Valcin presumption shifts the burden of proof to ensure that a jury decides the issue of negligence. Id. at 600. In order for a party to be entitled to the Valcin presumption, the trial court must first decide whether the allegedly missing evidence should have or did exist. Then, the court must determine whether the missing evidence hindered the plaintiff's ability to proceed. Jordan ex rel. Shealey v. Masters, 821 So. 2d 342 (Fla. 4th DCA 2002); see also Osmulski v. Oldsmar Fine Wine, Inc., 93 So. 3d 389 (Fla. 2d DCA 2012). e. The Adverse Inference It is important to note that an adverse inference from the failure to produce evidence is different from the Valcin rebuttable presumption. If the actions of the opposing party cause evidence to be lost that is necessary to prove a prima facie case, the Valcin presumption shifts the burden of proof to ensure that a jury decides the issue of negligence. In essence, the Valcin presumption supplies an essential element of the case—negligence—and shifts to the defendant the burden of proving that he or she was not negligent. The adverse inference merely allows counsel to argue to the jury the inference that the evidence was lost because it was damaging to the opposing party's case. Martino v. Wal-Mart Stores, Inc., 835 So. 2d 1251 (Fla. 4th DCA 2003), decision approved, 908 So. 2d 342 (Fla. 2005); Jordan ex rel. Shealey v. Masters, 821 So. 2d 342 (Fla. 4th DCA 2002). When a party fails to produce evidence within his control, an adverse inference may be drawn that the withheld evidence would be unfavorable to the party failing to produce it. However, the missing evidence must be relevant and the party seeking the inference must establish that it has been prejudiced by the loss of the evidence. New Hampshire Ins. Co., Inc. v. Royal Ins. Co., 559 So. 2d 102 (Fla. 4th DCA 1990). Unlike the Valcin rebuttable presumption of negligence, the adverse inference is not based on a strict legal “duty” to preserve evidence. Martino v. Wal-Mart Stores, Inc., 835 So. 2d 1251 (Fla. 4th DCA 2003), decision approved, 908 So. 2d 342 (Fla. 2005). Rather, the adverse inference arises in cases where evidence that is potentially damaging is in the possession of a party and that party either loses or destroys it. II. Analysis A. DEFENDANT’S FAILURE TO PRESERVE VIDEO SURVEILLANCE IS HAMPERING THE PLAINTIFF’S ABILITY TO PROVE HIS CASE Pursuant to Jordan ex rel. Shealey v. Masters, in order for a court to exercise a ruling due to the spoliation of evidence, the court must find that 1) the evidence existed at one time, 2) the spoliator had a duty to preserve the evidence, and 3) that the evidence was critical to an opposing party being able to prove its prima facie case. Jordan ex rel. Shealey v. Masters, 821 So. 2d 342, 347 (Fla. 4th DCA 2002). See, e.g., Hagopian v. Publix Supermarkets, Inc., 788 So. 2d 1088, 1090 (Fla. 4th DCA 2001); Fed. Ins. Co. v. Allister Mfg. Co., 622 So. 2d 1348, 1351 (Fla. 4th DCA 1993). There is absolutely no dispute that Defendant had a duty to preserve the surveillance footage of this incident as Plaintiff through her e-mail to Inis Alvarado infromed her that there was a slip and fall incident in the laundry room. Moreover, Ms. Alvarado on her own volition and at the suggestion of her boss, Martha Torres, decided to attempt to “verify” the fall, leaking laundry machine, and dirty floor. From that very moment, Defenadnt could apprecaite how important the video footage of the laundry room was on the day of his incident. A spoliation instruction, particularly an adverse inference instruction is warranted as Plaintiff can satisfy each of the elements provided by Jordan ex rel. Shealey v. Masters. There is uncontroverted evidence that Defendant could have: 1) could have saved all of the video footage from August 7 (especially at 7:00 a.m. when she looked at the video footage and claims nothing was on the floor); 2) could have saved video of Plaintiff’s fall, but did not; 3) could have saved the footage which captured the clean-up of the puddle that Plaintiff slipped in, but did not; 4) the cameras were not malfunctioning on the day of the incident and are not Motion detected like Ms. Alvarado stated as both the videos provided do not conform to her description of how the video footage records; 5) Ms. Alvarado decided on her own volition what to save and what not to save and blames her failure to save the 24 hours of footage before and after the incident was a “mistake”; and 6) Failure to save any video footage of the laundry room from 7:00 a.m. to 12:29 p.m. has completely precluded any party to this case from being able to tell how long the dirty substance was on the floor of the laundry room prior to Plaintiff’s fall. Based on Ms. Alvarado’s testimony, it appears that all three elements in Jordan ex rel. Shaley v. Master are met in this case: 1) The evidence, specifically video footage beginning at 7:00 a.m. existed at some point. The footage was not saved. It has been destroyed. 2) She a had duty to preserve evidence based on case law, Defendant’s policies, and Defendant’s Notice of Lawsuit and Spoliation and Preservation of Evidence Letter. 3) The missing evidence is critical to Plaintiff being able to prove its prima facie case. The video footage from the day of the incident is critical to establish liability. More specifically, it is important for establishing “constructive notice” to show that the substance on the ground was there for a sufficient length of time. Further, Plaintiff contends that there were employees close by the laundry room at the time of her fall. The video would also show how the substance got on the ground, how long it took to accumulate, and who cleaned it up. Plaintiff is entitled to an adverse inference as a result of Defendant’s loss of or destruction of the video and a Valcin instruction. There is no evidence in this case that any inspection was done of the laundry room by any of Defendant’s employee from 5:00 p.m. Friday, August 5, 2022 through Sunday, August 7, 2022, as Defendant claims it does not have employees that work or clean the laundry room on the weekends. III. Conclusion Due to Defendant’s unilateral destruction of the physical evidence in this case, Plaintiff requests the Court enter an Order granting Plaintiff’s Motion finding that Defendant negligently spoliated evidence in the form of the CCTV footage which was solely in Defendant’s possesion, custody, and control and which depicted 1) the subject incident; 2) the area of which the incident occurred; 3) Plaintiff the entire time she was in the laundry room and 4) the series of events leading up to and culminating in the subject incident. Plaintiff also requests the Court enter an Order finding that Defendant was on 1) actual notice of a potential claim at the time the CCTV video footage was destroyed; and 2) that the CCTV video footage was critical to Plaintiff being able to prove her prima facie case. Plaintiff requests this Court find that issuance of a jury instruction permitting the jury to draw an adverse inference from Defendant’s spoliation of the CCTV footage at issue in this case approprairate. Plaintiff also requests this Court find that the jury be provided with the Valcin presumption as well and grant any other relief it deems necessary and proper. WHEREFORE, Plaintiff requests this Court grant Plaintiff’s Motion for Spoliation, Adverse Inference, Valcin Instruction and Motion for Sanctions and such other relief this Court deems just and proper. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished to Brian J. Aull, Esquire, Cole, Scott & Kissane, P.A. (Counsel for Defendant), 4686 Sunbeam Road, Jacksonville, FL 32257; brian.aull@csklegal.com and April.jarvis@csklegal.com; by e-mail only via Florida’s E-Filing Portal in accordance with Rule 2.516, Florida Rules of Administration, this 8th day of June, 2023. MORGAN & MORGAN _______________________________________ COREY J. PORTNOY, ESQUIRE Florida Bar No. 118859 501 Riverside Avenue, Suite 1200 Jacksonville, FL 32202 Primary Email: cportnoy@forthepeople.com Secondary Email: jenniferdaniel@forthepeople.com cforbes@forthepeople.com Telephone: (904) 361-4441 Fax: (904) 361-7241 Attorney for Plaintiff EXHIBIT A EXHIBIT B From: Inis Alvarado Sent: Wednesday, January 18, 2023 9:11 AM To: Martha Torres Subject: Fwd: Fall in laundry room Forwarded message From: Inis Alvarado Date: Mon, Aug 8, 2022 at 3:29 PM Subject: Re: Fall in laundry room To: Amber Bassett Hello Amber I'm sorry for hearing that I hope you are improving. I will check what I can do. Thanks for letting me know! Inis Property Manager On Mon, Aug 8, 2022 at 9:20 AM Amber Bassett wrote: Good morning, I'm writing to you in regards to an incident that happened yesterday, Sunday August 7th at 12:29pm. We were doing laundry in the laundry room, and when we walked in, the floor was soaked. Sarah ended up slipping and falling. She hit her right knee hard on the floor. Her knee was instantly swollen with a golf sized egg, and she couldn't feel her leg. We immediately went to the emergency room to have X-rays done. Luckily, she wasn't hurt worse. Nothing is broken. In the meantime, she has to follow up with the primary care doctor. Unfortunately, she doesn't have health insurance so this is going to be a nice size bill that was uncalled for. What can be done to make this situation right? I have attached some pictures of the floor. If you have any questions, please feel free to call her at 904-705-3673. Amber and Sarah (501) EXHIBIT C L EXHIBIT D – VIDEO LINK TO VIDEO https://api.079770162388.genesisapi.com/v1/share/s/s4shWrKZU00pGXyfV2G_j9MMqWaWZ SFN3n-JrWyd63k Page 1 1 IN THE CIRCUIT COURT, FOURTH JUDICIAL CIRCUIT, IN AND FOR 2 DUVAL COUNTY, FLORIDA 3 CASE NO.: 16-2022-CA-6621 DIVISION: CV-C 4 SARAH STAMBLER, 5 Plaintiff, 6 vs. 7 OPTIVO GROUP, LLC d/b/a THE 8 STERLING AT SAN MARCO, 9 Defendant. 10 __________________________________/ 11 REMOTE VIDEOTAPED 12 DEPOSITION OF: INIS ALVARADO 13 DATE: MONDAY, MAY 22, 2023 14 TIME: 9:17 A.M. - 11:05 A.M. 15 STENOGRAPHICALLY REPORTED BY: STACIA A. HARPER, FPR 16 17 18 19 20 21 22 23 24 25 Veritext Legal Solutions 800-726-7007 305-376-8800 EXHIBIT E Page 2 Page 4 1 A P P E A R A N C E S: 1 STIPULATIONS 2 COREY J. PORTNOY, ESQUIRE (Appearing via videoteleconference.) 2 It is hereby stipulated and agreed by and between 3 OF: Morgan & Morgan 3 the counsel for the respective parties and the deponent 76 South Laura Street 4 Suite 1100 4 that the reading and signing of the deposition Jacksonville, Florida 32202 5 transcript be reserved. 5 904-361-4441, FAX-904-361-7241 6 ------ Cportnoy@forthepeople.com 6 APPEARING ON BEHALF OF THE PLAINTIFF 7 7 BRIAN AULL, ESQUIRE 8 (Appearing via videoteleconference.) 8 OF: Cole, Scott & Kissane, P.A. 9 4686 Sunbeam Road 10 9 Jacksonville, Florida 32257 11 904-672-4070, FAX-904-672-4050 10 Brian.aull@csklegal.com 12 APPEARING ON BEHALF OF THE DEFENDANT 13 11 12 14 ALSO PRESENT: 15 13 CHRIS HERNANDEZ, VIDEOGRAPHER 16 JONI AZULAY, INTERPRETER 14 ------ 17 15 18 16 17 19 18 20 19 21 20 21 22 22 23 23 24 24 25 25 Page 3 Page 5 1 INDEX 1 PROCEEDINGS 2 3 TESTIMONY OF INIS ALVARADO 2 ********* 4 DIRECT EXAMINATION BY MR. PORTNOY............... 6 3 THE VIDEOGRAPHER: We're on the record, date is 5 CERTIFICATE OF OATH OF INTERPRETER................... 57 4 May 22, 2023, time is 9:17 a.m. This is media unit 1 6 CERTIFICATE OF REPORTER.............................. 58 7 NOTIFICATION LETTER.................................. 59 5 of the videotaped deposition of Inis Alvarado. Will 8 ERRATA SHEET......................................... 60 6 counsel please state their appearances for the 9 7 record. 10 11 8 MR. PORTNOY: Good morning. Corey Portnoy on INDEX OF EXHIBITS 9 behalf of the plaintiff, Sarah Stambler. 12 PLAINTIFF'S EXHIBITS 10 MR. AULL: Brian Aull on behalf of OPTIVO 13 11 Group, the defendant. EXHIBIT 1............................................ 20 12 THE VIDEOGRAPHER: Okay. Will our court 14 (E-mail with Photographs) 15 EXHIBIT 2............................................ 25 13 reporter please swear in the interpreter. (Video Footage) 14 COURT REPORTER: Do you solemnly swear or 16 15 affirm that you will truly and accurately translate EXHIBIT 3............................................ 28 17 (Video Footage) 16 the testimony given in this matter from English to 18 EXHIBIT 4............................................ 39 17 Spanish and from Spanish to English to the best of (Five Photographs) 18 your ability? 19 EXHIBIT 5............................................ 44 19 INTERPRETER: I do. 20 (Maintenance Plan) 20 THEREUPON 21 EXHIBIT 6............................................ 44 (Duties and Responsibilities of a Groundskeeper) 21 Joni Azulay, 22 22 the interpreter, was duly sworn to truly and accurately EXHIBIT 7............................................ 54 23 translate from English to Spanish and Spanish to 23 (Inspection Log) 24 24 English. 25 ------ 25 COURT REPORTER: Would you please raise your 2 (Pages 2 - 5) Veritext Legal Solutions 800-726-7007 305-376-8800 Page 6 Page 8 1 right hand? 1 the court reporter will not be able to take a clean 2 Do you solemnly swear or affirm that the 2 record down so we may ask you, is that a yes or a no? 3 testimony you're about to give is the truth, the 3 A. Okay. 4 whole truth and nothing but the truth? 4 Q. If you need a break at any time, you're 5 THE WITNESS: Yes. 5 entitled to take as many breaks as you want. It's just 6 THEREUPON 6 before you take a break if there's a question pending, 7 INIS ALVARADO 7 you have to answer the question. 8 was called as a witness and, having first been duly 8 A. Okay. 9 sworn, testified through the interpreter, Joni Azulay, 9 Q. Are you under the influence of any medication, 10 as follows: 10 drugs, or alcohol that would impair your ability to 11 DIRECT EXAMINATION 11 testify today? 12 BY MR. PORTNOY: 12 A. No. 13 Q. Good morning, ma'am. Is there anyone in the 13 Q. You understand that earlier today you took an 14 room with you currently? 14 oath to tell the truth, correct? 15 A. Miguel Calderon. 15 A. Yes. 16 MR. PORTNOY: Okay. Brian, I'm going to ask 16 Q. Do you understand that failure to tell the 17 that he leave the room. I know the rule is anyone 17 truth while under oath is punishable by a third-degree 18 can be present. Are you okay with asking him to 18 felony? 19 leave the room? 19 A. Yes. 20 MR. AULL: Yeah. He can leave the room. He's 20 Q. Did you do anything to prepare for today's 21 a witness. That's fine. 21 deposition? 22 MR. PORTNOY: Will you ask Miguel to please 22 A. No. 23 leave the room? 23 Q. Did you review any photographs prior to today's 24 THE WITNESS: Yes. 24 deposition at any time? 25 BY MR. PORTNOY: 25 A. No. Page 7 Page 9 1 Q. If you could, ma'am, would you just turn your 1 Q. In your entire life have you ever reviewed any 2 camera to show that he's left the room? 2 photographs of the laundry room and the area where Sarah 3 A. (Witness complies.) 3 Stambler is believed to have fallen on August 7, 2000 -- 4 Q. Thanks so much. Ma'am, if you could, would you 4 2022? 5 please state your full name for the record? 5 A. Yes. 6 A. Inis Alvarado. 6 Q. When did you first review those photographs? 7 Q. And, Inis, if you could, would you please state 7 A. On August 7th in 2022. 8 your date of birth? 8 Q. I don't want to know about any conversation you 9 A. April 2, 1989. 9 might have had with your attorneys, but did you speak 10 Q. Where do you currently live? 10 with Mr. Aull prior to today's deposition? 11 A. 8737 Galveston Avenue, Jacksonville, Florida 11 A. No. 12 32211. 12 Q. Who did you speak to, if anyone, prior to 13 Q. Is that a property that is owned by OPTIVO 13 today's deposition about this case? 14 Group, LLC? 14 A. With Martha Torres, my boss. 15 A. No. 15 Q. When is the last time that you spoke with 16 Q. Have you ever given a deposition before? 16 Martha Torres about this case? 17 A. No. 17 A. Friday, May 19, 2023. 18 Q. There's a few ground rules for a deposition. 18 Q. What did you discuss -- 19 I'm going to go through those now. 19 MR. AULL: Corey -- Corey, let me jump in here. 20 A. Okay. 20 There may be a disconnect about the issue of 21 Q. As you can see, there's a court reporter taking 21 deposition, but I was present when -- with her 22 down everything that is being said today so it's really 22 conversation with Martha on Friday. So I just need 23 important that you answer in yeses or noes. 23 to clarify that and maybe we need to reframe the 24 A. Okay. 24 question for her. 25 Q. If you shake your head or say huh-uh or huh-uh, 25 MR. PORTNOY: Thank you, Brian. 3 (Pages 6 - 9) Veritext Legal Solutions 800-726-7007 305-376-8800 Page 10 Page 12 1 MR. AULL: Yeah. I didn't want it to get off 1 LLC? 2 the rails, and I just think there may be a little 2 A. June 26, 2022. I apologize. It's January 26, 3 bit of a disconnect. I wanted to be clear. She did 3 2022. 4 meet with me with Martha. 4 Q. Where did you work before that? 5 MR. PORTNOY: Okay. 5 A. I worked for an employment agency by the name 6 BY MR. PORTNOY: 6 of Remedy and Safari. 7 Q. Earlier today there was an individual in the 7 Q. What is your current role with OPTIVO? 8 room when we started this deposition. What was his 8 A. Manager. 9 name? 9 Q. Is that also called the property manager 10 A. Miguel Calderon. 10 sometimes? 11 Q. Is Miguel Calderon still employed by OPTIVO 11 A. Yes. 12 Group, LLC? 12 Q. And what's -- back in August of 2000 -- 2022, 13 A. Yes. 13 what was your schedule? 14 Q. On Friday when you met with Martha, did you 14 A. Eight to five. 15 review any video footage of the laundry room that was 15 Q. Did that include weekends as well? 16 saved from August 7th or August 8, 2000 -- 2022? 16 A. No. Monday through Friday. 17 A. No. 17 Q. Is there someone who is an assistant property 18 Q. In your entire lifetime, have you ever reviewed 18 manager at the property? 19 any video footage that was saved that pertains to the 19 A. No. 20 fall that took place on August 7, 2000 -- 2022? 20 Q. When you are not present, who is responsible 21 A. Yes. 21 for your duties? 22 Q. When was the first time you reviewed that 22 A. Here at corporate. 23 footage? 23 Q. It broke up there. Can you repeat, please? 24 A. August 8, 2022. 24 THE INTERPRETER: Here at corporate. 25 Q. Were you the individual that saved that video 25 BY MR. PORTNOY: Page 11 Page 13 1 footage? 1 Q. And where are you currently doing this 2 A. Yes. 2 deposition from? 3 Q. Do you have any plans to move from the address 3 A. In the corporate office. 4 located on the Galveston Road within the next year? 4 Q. Does OPTIVO have any employees present ever on 5 A. Yes. 5 the weekends at The Sterling at San Marco apartment 6 Q. Where do you plan to move? 6 complex? 7 A. At this moment, I'm in the process of trying to 7 A. No. Only when a tenant calls with an 8 purchase a home, and I hope to be able to move by the 8 emergency. 9 end of the year. 9 Q. And throughout today's deposition, I might 10 Q. Is that home located in Jacksonville, Florida? 10 refer to the premises as the property. And when I do 11 A. Yes. 11 that, I want you to know that I'm referring to the 12 Q. Do you know the address for that location? 12 property located at 2943 Spring Park Road, Jacksonville, 13 A. I have to look it up in my phone. 13 Florida 32207. Is that fair? 14 Q. Could you, please? 14 A. Yes. 15 A. 2409 Townsend Boulevard, Jacksonville, Florida 15 Q. As the property manager, is one of your 16 32211. 16 responsibilities to ensure that the property is kept 17 Q. This is a question that we ask all the people 17 clean? 18 who sit in the chair like you are today. Have you ever 18 A. Yes. 19 been arrested in your life? 19 Q. What are your responsibilities as the property 20 A. No. 20 manager? 21 Q. Have you ever been convicted of a felony? 21 A. I address any complaints brought forth by any 22 A. No. 22 tenant. I rent the apartments. I collect the rent, and 23 Q. Have you ever been terminated by an employer? 23 I maintain the common areas; clean and organized. 24 A. No. 24 Q. Would you agree that one of your 25 Q. How long have you worked for the OPTIVO Group, 25 responsibilities is to make sure that the employees at 4 (Pages 10 - 13) Veritext Legal Solutions 800-726-7007 305-376-8800 Page 14 Page 16 1 the property are doing their job? 1 Q. And when you -- is there anyone that would do 2 A. Yes. 2 any type of inspection on a Saturday or a Sunday to make 3 Q. Would you also agree that it's one of your 3 sure that the laundry room is clean? 4 responsibilities to make sure that the property is kept 4 A. No. 5 safe? 5 Q. On Friday, August -- pardon me one moment. 6 A. Yes. 6 Would it be fair to say that on August 5, 2000 7 Q. And ultimately -- you said it was your -- I 7 -- 2022 at 8 a.m., that was the last time the laundry 8 believe you said it was one of your responsibilities to 8 room was inspected before Saturday, August 6, 2000 -- 9 maintain the common areas of the apartment complex. 9 2022? 10 Does that mean that you would agree it's your 10 A. The laundry is inspected at 8 a.m. and at 11 responsibility to make sure that the floors of the 11 5 p.m. before we depart for the day. 12 common areas are kept free of debris? 12 Q. And on August 5th -- Friday, August 5th at 13 A. Yes. 13 5 p.m. who was the last individual to inspect the 14 Q. Back in August of 2000 -- 2022, what were 14 laundry room that day? 15 OPTIVO Group, LLC policies for inspecting the common 15 A. Miguel Calderon. 16 areas? 16 Q. Now, you're aware that there's cameras in the 17 A. We start with the maintenance and the 17 laundry room, correct? 18 groundskeepers. We do rounds to make sure that 18 A. Yes. 19 everything is in order. 19 Q. And how many cameras are there in the laundry 20 Q. And when you say the groundskeeper, who would 20 room? 21 that be Monday through Friday back in August of 2000 -- 21 A. Only one. 22 2022? 22 Q. And would you agree that on August 5, 2000 -- 23 A. Miguel Calderon. 23 2022, it would've been -- the video camera would have 24 Q. You've also referenced a maintenance tech. Who 24 captured Miguel inspecting the laundry room in the 25 would've that have been back in August? 25 morning, correct? Page 15 Page 17 1 A. Arnaldo Carillo. 1 A. The cameras do not videotape before seven. 2 Q. And when would these safety sweeps or 2 They only are motion sensitive. 3 inspections occur in the mornings Monday through Friday? 3 Q. That doesn't answer my question. My question 4 A. At 8:00 a.m. 4 is would the camera have captured Miguel inspecting the 5 Q. Okay. And how often would they occur Monday 5 laundry room at 8 a.m. on August 5th if he walked in 6 through Friday? 6 there? 7 A. It's done Monday through Friday. 7 A. Yes. 8 Q. Once a day? twice a day? three times a day? 8 Q. And when he inspected the laundry room on 9 once an hour? twice an hour? How often throughout the 9 August 5th for a second time, the camera would have 10 day? 10 captured him walk into the laundry room as well? 11 A. One time