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Filing# 174338443 E-Filed 05/31/2023 07:08:08 PM
INTHE CIRCUIT COURT OF THE 17TH
JUDICIAL CIRCUIT IN AND FOR
BROWARD COUNTY, FLORIDA
TASHAWN JACKSON,
Plaintiff, CASE NO.. 21-008489 CACE (13)
VS.
WAL-MART STORES EAST, LP and
CRYSTAL BURNEY,
Defendants.
i
PLAINTIFF'S MOTION FOR SANCTIONS AND VALCIN INSTRUCTION
COMES NOW Plaintiff,TASHAWN JACKSON, by and through the undersigned counsel
and pursuant to Fla. R. Civ. P. hereby moves the Court for entry of an Order awarding
1.380(b)(2),
sanctions for fraud and spoliation
of evidence as well as approving a jury instruction pursuant to
Pub. Health Trust v. Valcin, 507 So. 2d 596 (Fla.1987) againstDefendants, WAL-MART
STORES EAST, LP and CRYSTAL BURNEY, (hereinafter"Defendants"),
and in support thereof
states as follows:
1. This is incident which
a negligence cause of action arisingfrom a slip-and-fall
occurred on the Wal-Mart's premises on March 18, 2020.
2. On said date,Plaintiff was shopping on the premises when he slippedand fell due
to the presence of a transient foreignsubstance on the floor later determined to be batteryacid. 1
1 There is no disputethat batteryacid was indeed on the floor.
Page 1 o f 11
*** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 05/31/2023 07:08:08 PM.****
3 In discovery,Defendants produced portionsof video surveillance which depicted
several of the employees involved and
the aisle,the generalarea of the spill, showed Plaintiff as
he walked down the subjectaisle.
4. However, the surveillance video produced by Defendants mysteriously stops
playingfor a periodoftime. See Surveillance Video which will be provided to the Court as Exhibit
CC A 57
1-1 .
5. The video provided starts at 5:44:55 and then stops at approximately5:48:17. The
movement bar on the bottom of the video screen continues to advance, but the pictureis frozen.
6. The picturethen starts moving again at approximately6:31:42.
7. The Plaintiff is seen in the video a
initially little under ten (10) minutes later at
6:41:07 as he makes his way down the aisle where he ultimatelyencounters the subjectbattery
acid that is on the ground.
8 During that approximately 10-minute timeframe, no other employees or customers
are seen enteringthe subjectaisle.
9- Plaintiff has reached out to Counsel for Defendants regardingthis issue and was
told that he "checked [the]video and it does the same thing."See November 4,2022, E-mail
correspondence attached hereto as Exhibit "B."
10. Defendants have denied liability
in this case and are furthering
insinuatingthat
Plaintiff is being fraudulent in his claim.
11. Defendant, CrystalBurney, is the employee/manager who discovered the battery
acid on the floor and has testified that she allegedly
witnessed Plaintiff"throw himself' onto the
floor sometime after the discoveryofthe batteryacid. None ofthe employees listed by Defendants
Page 2 o f 11
were able to testifyas to when the batteryacid made its way onto the floor or the last time a
Walmart employee was in the was done to determine same
vicinityof same as no investigation
and the video was not properlypreserved.
Testimony of Walmart Corporate Representative,
Megan McGhie:
Pages 82-84, lines 11-25; 1-25; and 1-4
Aaron Papero: Would it have been important,in this case, for Walmart to go back
and try to determine when and how the batteryhas got onto the floor?
Megan McGhie: Um, not-- not necessarilyfor this case.
Aaron Papero: Why not?
Megan McGhie: Because Walmart believes that the-- the Plaintiff threw himself on
the floor,that he didn't actuallyslipon the batteryacid.
Aaron Papero: Well, that's based on-- on one singleemployee, right?
Megan McGhie: That's based on the statement that she made, yes.
Aaron Papero: Right. So-- so Walmart's decision with regards to either further
investigatingthe incident,uh, or using the video as a trainingdevice is based upon the
statementof-- of one-- one associate?
Megan McGhie: Well, the associate did what she was supposed to do. She guarded
the spilland waited for somebody to come and clean it up.
Aaron Papero: Right. But my question is
Walmart's decision to, you know, either
this or to-- to look at the video as-- as some type oftrainingpotential
not further investigate
is based upon the statement of-- of one associate.
Megan McGhie: Well, yes, because o f the circumstances of the incident in some of
the facts before the incident. They didn't find it necessary.
Aaron Papero: What-- what other circumstances? 'Cause we-- 'cause the video--
'cause the incident is not capturedon video, right?
Megan McGhie: Correct. Correct.
Page 3 o f 11
Aaron Papero: And we know that their Walmart is-- is agreeingand-- and is aware
that there was indeed batteryacid that was on the floor at the time, is that right?And so-
Megan McGhie: Yes. When the-- when Crystal saw it on the floor,that's when the
Walmart was made aware of the-- the spillon the floor.
Aaron Papero: Does Walmart know how long the-- the batteryacid was on the
floor?
Megan McGhie: That we're not aware ofthat.
Aaron Papero: Does Walmart know the last time there was an associate or an
employee in the vicinityof the spilled
acid,uh, before the allegedincident occurred?
Megan McGhie: No, um, we-- we were justmade aware ofthe spillonce Crystalsaw
it.
12. It is Plaintiff's burden to case. One of the ways
prove notice in a premises liability
in which to do so is by proving constructive notice. Constructive knowledge of a dangerous
condition on property may be proven by circumstantial evidence. Freeman v. BellSouth
Telecommunications, Inc.,954 So. 2d 45 (Fla.1st DCA 2007).
13. Thus, a defendant may be said to have constructive notice of a dangerous condition
if that condition is shown to have existed before the injuryoccurred for a sufficient lengthof time
that the defendant should have known of it. Grimes v. Family Dollar Stores of Florida, Inc., 194
So. 3d 424 (Fla.3d DCA 2016); Cisneros v. Costco Wholesale Corp., 754 So. 2d 819 (Fla.3d
DCA 2000); Soriano v. B&B Cash Grocery Stores, Inc., 757 So. 2d 514 (Fla.4th DCA 1999),
decision quashed on other grounds,cause remanded, 802 So. 2d 315 (Fla.2001); Burnett v. Lower
Florida Keys Health Systems, Inc., 722 So. 2d 951 (Fla.3d DCA 1998); Colon v. Outback
Steakhouse of Florida, Inc., 721 So. 2d 769 (Fla.3d DCA 1998); Owens v. Publix Supermarkets,
802 So. 2d 315 (Fla.2001). In transitoryforeignsubstance cases, courts look to the length of
:Inc.,
Page 4 o f 11
time the condition existed before the accident occurred. Delgado v. Laundromax, Inc., 65 So. 3d
1087 (Fla.3d DCA 2011).
14. One of the sufficient length of time sufficient to
the seminal cases interpreting
create an inference is Little v. Publix Supermarkets,Inc., 234 So.2d 132 (4?
th
DCA 1970). The
Court indicated:
In action for damages arising out of slipand fall in supermarket, once
inference had been drawn that no one else was in aisle where accident
occurred for from 15 to 20 minutes, during which nothing dropped,
broke or spilled, there was no reasonable inference to indulge in other
than that the liquid was on the Iloor for at least 15-20 minutes prior to
the fall,which time could be deemed sufficient for defendant to be
charged with knowledge of the condition and with having had a
reasonable time in which to correct it,which were matters that jury
should determine. Id. at 134.
15. Furthermore, there have been issues from the very beginning even obtainingall of
video includingdifferent camera anglesin this case. The additional videos were not provided in
discovery until many months after initial responses were due and only after several requests and
motions filed.
16. The video is and was the only depictionofthe incident which would go a long way
in establishing damages and causation while potentially
liability, refutingDefendant's version of
the incident as described by Defendant, CrystalBurney.
17. Defendant is and causation and therefore the video
disputingliability is crucial to
Plaintiff's case.
18. "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."
Martino v. Wal-Mart Stores, 835 So. 2d 1251, 1257 (Fla.4th DCA 2003).
Page 5 o f 11
19. Under Florida law, the remedy for a party failing
to produce crucial but unfavorable
evidence that is destroyed or inexplicablydisappearsis to impose various discovery sanctions,
adverse inferences,or presumptions. See Martino v. Wal-Mart Stores, Inc., 908 So. 2d 342,346-
47 (Fla.2005); see also League of Women Voters of Fla. v. Detzner, 172 So. 3d 363, 391 (Fla.
2015). Spoliationsanctions are imposed depending on "the willfulness or bad faith,if any, of the
party responsiblefor the loss ofthe evidence, the extent ofprejudice suffered by the other party or
and what
parties, is requiredto cure the Sponco Mfg., Inc.
prejudice." v. Alcover, 656 So. 2d 629,
630 (Fla.3d DCA 1995).
20. There is a three-prong test to determine whether an adverse inference jury
instruction for of evidence
spoliation is warranted: (1) whether the evidence existed at one time,
(2) whether the spoliatorhad a duty to preserve the evidence, and (3) whether the evidence was
importantto an opposing party to prove its case. Golden Yachts, Inc. v. Hall, 920 So. 2d 777 (Fla.
4th DCA 2006).
21. A Defendant is charged with a duty to preserve evidence where it could reasonably
have foreseen a claim againstit. Am. Hospitality
Mgmt. Co. v. Hettiger,904 So. 2d 547 (Fla.4th
DCA 2005); and Adamson v. R.J. Reynolds Tobacco Company, 325 So.3d 887 (2021).
22. where the court must find the spoliator
Unlike an adverse presumption instruction,
had a strict legalduty to preserve the evidence, an adverse Inference may arise in any situation
where potentially
self-damaging evidence is lost or destroyedby a party that possessed it. Martino,
835 So. 2d 1251; Golden Yachts, Inc., 920 So. 2d 777.
23. In cases where an adverse inference is warranted, the trial court has broad discretion
ofremedies to award the aggrieved party. These remedies include: allowing the aggrieved party to
Page 6 o f 11
present evidence of the pre-accidentcondition of the lost evidence and the circumstances
and a jury instruction ofan inference that the destroyedor
surroundingthe spoliation, lost evidence
would be unfavorable to the party that failed to produce it. Id. These remedies may be cumulative,
as determined by the judge from the circumstances of each case, in the exercise ofbroad discretion.
Id.
24. In Golden Yachts, 920 So. 2d 777, the Fourth District upheld the trial court's use of
the adverse jury instruction for failure to preserve evidence. The Plaintiff in that case was injured
when he fell aboard a boat because the boat cradle snapped. Id. Two years after the accident,the
Plaintiffs and the boat cradle manufacturer requestedinspectionof the boat cradle debris. When
the Defendant yacht club owner was unable to produce it the trial court grantedthe request for an
adverse inference jury instruction. The Fourth District affirmed the trial court's ruling,noting that,
"the lack of crucial evidence in proving their claims and the co-defendant
hampered the plaintiffs
from proving its defense." Id. at 781.
25. Furthermore, the Florida Supreme Court has held that when the spoliationis
intentional,sanctions under Rule 1.380(b)(2)are appropriate,
such as prohibitingthe spoliator
from supportingcertain claims or defenses, the exclusion of proposed evidence or testimony,or
an adverse inference;however, when the spoliationis merely negligent,a rebuttable presumption
should apply.Martino, 908 So. 2d at 346; see also League of Women Voters of Fla.,172 So. 3d
at 391 ("Floridacourts may impose sanctions,includingstrikingpleadings againsta party that
intentionallylost, misplaced, or destroyed evidence, and a jury could infer under such
If the evidence was
circumstances that the evidence would have contained indications of liability.
negligentlydestroyed,a rebuttable presumption of liability
may arise.").
Page 7 o f 11
26. It is undisputablethat recorded surveillance footage of the area, the Plaintiff and
the employees existed,that Defendant was aware of and viewed the footageand therefore should
have preserved it,and that Plaintiff is impaired in proving his case and disproving
significantly
Defendant's statements. The video would have shown the last time a customer and/or employee
was of the spill.
in the vicinity
27. The appropriatenessof sanctions for failingto preserve evidence depends on: (1)
willfulness or bad faith of the responsible
party, (2) the extent of prejudicesuffered by the other
party, and (3) what is requiredto cure the prejudice.Harrell v. Mayberry, 754 So. 2d 742 (Fla.2d
DCA 2000).
28. Walmart failed to timely provide additional surveillance video which was clearly
in their possession prior to the filingof this lawsuit which further establishes purposeful intent.
The Defendants should not be permittedto make assumptions and testify
that Plaintiff's fall was a
concocted scheme, nor should they be permittedto argue that they were not on constructive notice
of the dangerous condition. Defendants should not be rewarded for their conduct and failure to
preserve crucial evidence.
29. Furthermore, this Court should instruct the jury that it is permittedto infer that the
disposed or lost evidence would have been unfavorable to the Defendants.
30. In circumstances where critical missing evidence was under the sole control ofthe
party againstwhom the evidence might have been used to effect,an adverse inference instruction
may be necessary to achieve fairness in the jury'sdetermination of the case. American Hospitality
Mgmt. Company of Minnesota v. 904 So.2d 547 (Fla.4th
Hettiger, DCA 2005).
Page 8 o f 11
31. The ith
41 DCA in Hettigerinstructed trial judges to implement a jury instruction that
resembled a jury instruction given in Palmas v. Bambu. S.A. v. E.L. DuPont de Nemours & Co.,
881 So. 2d 565 (Fla.3d DCA 2004) which read:
You have heard testimony about potential evidence which the party
having custody failed to produce. Plaintiffs have argued that this
evidence was in defendant's control and would have proven facts
material to the issue of negligence. If you find that this evidence was
then within defendant's control, that defendant could have preserved
this evidence so that it was available for the partiesin preparing for the
trial in this case, and that this evidence would have been material in
deciding the facts in dispute in this case, then you are permitted, but
are not required, to infer that the evidence would have been
unfavorable to defendant. Any inference you decide to make should be
based on all of the facts and circumstances in this case.
32. party under Florida Rule
Courts have the inherent authorityto sanction a spoliating
of Civil Procedure 1.380. See Fini v. Glascoe, 936 So. 2d 52, 55 (Fla.4th DCA 2006). "In cases
of negligent spoliation,courts prefer to utilize adverse evidentiary inferences and adverse
presumptionsduringtrial to address the lack of evidence. In cases involvingintentional spoliation,
courts most often strike pleadingsor enter default judgments." Golden Yachts, 920 So. 2d at 780
(citingMartino v. Wal-Mart Stores, Inc., 908 So. 2d 342,346-47 (Fla.2005))."Drastic sanctions,
includingdefault,are appropriatewhen a defendant alters or destroysphysicalevidence, and when
to proceed without such evidence." Harrell v. Mayberry,
demonstrated an inability
the plaintiffhas
754 So. 2d 742,745 (Fla.2d DCA 2000); see also Rockwell Int'l Corp. v. Menzies, 561 So. 2d
677, 680 (Fla.3d DCA 1990) (degree of sanctions to be imposed must be related to degree of
prejudicesustained by non-offendingparty).
Page 9 o f 11
33. Based upon the totality
ofthe circumstances presentedand the caselaw cited above,
Defendants should be sanctioned for failing
to preserve crucial evidence by (1)not being permitted
to argue against constructive knowledge; (2) not being permitted to make allegationsthat
Plaintiff's fall was done on purpose; (3)strikingcertain of Defendants answers and responses to
discovery;and (4)includingan adverse inference instruction to be read to the jury.
WHEREFORE based upon the foregoing reasons, Plaintiff,TASHAWN JACKSON,
requests that the Court enter an Order grantingthe
respectfully Plaintiffs' Motion for Sanctions for
Spoliationof Evidence, imposing the requested sanctions outlined above and for any and all other
relief this Court deems justand appropriateunder the circumstances.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy ofthe foregoinghas been electronically
filed portalon
and served through the e-filing this 3 PIst day of May, 2023 to: D. Terrance Hill,
Esquire,and Frank L. Madia, Esquire,Marshall Dennehey, 100 NE 3rd Avenue, Suite 1100, Fort
Lauderdale, FL 33301, dthill@mdwcg.com; flmadia@mdwcg.com; jrpayton@mdwcg.com.
STEINGER, GREENE & FEINER, P.A.
nd
2727 N.W. 62 Street
Fort Lauderdale, FL 33309
Telephone: (954) 491-7701
Facsimile: (954) 492-5642
Email: apapero@injurylawyers.com
cskuratovskiy@injurylawyers.com
Attorneys for Plaintiff
/s/ Aaron M. Papero, Esq.
Aaron M. Papero, Esquire
Florida Bar No.. 59782
Page 10 of 11
EXI IIBIT ,,
668
Page 11 of 11
Aaron Papero
From: Madia, Frank L.
Sent: Friday,November 4, 2022 9:51 AM
To: Aaron Papero
CC: Christine Skuratovskiy
Subject: RE: Jackson
Good morning Aaron. I just checked my video and it does the same thing.
Not sure how to resolve the technical issues with this.
Thanks.
Frank L. Madia
Attorney at Law
DO
315 E. Robinson St., Suite 550, Orlando, FL 32801
Direct: (407) 420-4410 I Main: (407) 420-4380 I Fax: (407) 839-3008
bio I e-mail I website
DENNEHEY Dri>.. <1,?F..%?,#il>ri-
This e-mail transmission and any documents, files or previous e-mail messages attached to it,are confidential and are protected by the attorney-client privilege
and/or work product doctrine. If you are not the intended recipient, or a person responsible for delivering it to the intended recipient, you are hereby notified that
any review, disclosure, copying, dissemination, distribution or use of any of the information contained in, or attached to this e-mail transmission is STRICTLY
PROHIBITED. If you have received this transmission in error, please immediately notify me by forwarding this e-mail to FLMadia@.MDWCG.com, or by telephone
at (407) 420-4410 and then delete the message and its attachments from your computer.
From: Aaron Papero
Sent: Friday,November 4,2022 9:39 AM
To: Madia, Frank L.
Cc: Christine Skuratovskiy
Subject: Jackson
WARNING: This email originated outside MDWCG
Hey Frank, I forgot about this but I have been asking for a better video in this case. The one originallysent to us does not
work between 5:48:17 and 6:31 something. The video just stops and then starts back moving around the 6:31 mark.
Please send that over asap.
AarONPaperO. ESg.
Litigation Attorney
& Feiner
S?einger,Greene
*
INJURYLAWYERS.COM
Address: 2727 NW 62' ind
Street
Fort Lauderdale, FL 33309
Direct Phone & Fax: 954-320-6908
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Filing# 174338443 E-Filed 05/31/2023 07:08:08 PM INTHE CIRCUIT COURT OF THE 17TH JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA TASHAWN JACKSON, Plaintiff, CASE NO.. 21-008489 CACE (13) VS. WAL-MART STORES EAST, LP and CRYSTAL BURNEY, Defendants. i PLAINTIFF'S MOTION FOR SANCTIONS AND VALCIN INSTRUCTION COMES NOW Plaintiff,TASHAWN JACKSON, by and through the undersigned counsel and pursuant to Fla. R. Civ. P. hereby moves the Court for entry of an Order awarding 1.380(b)(2), sanctions for fraud and spoliation of evidence as well as approving a jury instruction pursuant to Pub. Health Trust v. Valcin, 507 So. 2d 596 (Fla.1987) againstDefendants, WAL-MART STORES EAST, LP and CRYSTAL BURNEY, (hereinafter"Defendants"), and in support thereof states as follows: 1. This is incident which a negligence cause of action arisingfrom a slip-and-fall occurred on the Wal-Mart's premises on March 18, 2020. 2. On said date,Plaintiff was shopping on the premises when he slippedand fell due to the presence of a transient foreignsubstance on the floor later determined to be batteryacid. 1 1 There is no disputethat batteryacid was indeed on the floor. Page 1 o f 11 *** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 05/31/2023 07:08:08 PM.**** 3 In discovery,Defendants produced portionsof video surveillance which depicted several of the employees involved and the aisle,the generalarea of the spill, showed Plaintiff as he walked down the subjectaisle. 4. However, the surveillance video produced by Defendants mysteriously stops playingfor a periodoftime. See Surveillance Video which will be provided to the Court as Exhibit CC A 57 1-1 . 5. The video provided starts at 5:44:55 and then stops at approximately5:48:17. The movement bar on the bottom of the video screen continues to advance, but the pictureis frozen. 6. The picturethen starts moving again at approximately6:31:42. 7. The Plaintiff is seen in the video a initially little under ten (10) minutes later at 6:41:07 as he makes his way down the aisle where he ultimatelyencounters the subjectbattery acid that is on the ground. 8 During that approximately 10-minute timeframe, no other employees or customers are seen enteringthe subjectaisle. 9- Plaintiff has reached out to Counsel for Defendants regardingthis issue and was told that he "checked [the]video and it does the same thing."See November 4,2022, E-mail correspondence attached hereto as Exhibit "B." 10. Defendants have denied liability in this case and are furthering insinuatingthat Plaintiff is being fraudulent in his claim. 11. Defendant, CrystalBurney, is the employee/manager who discovered the battery acid on the floor and has testified that she allegedly witnessed Plaintiff"throw himself' onto the floor sometime after the discoveryofthe batteryacid. None ofthe employees listed by Defendants Page 2 o f 11 were able to testifyas to when the batteryacid made its way onto the floor or the last time a Walmart employee was in the was done to determine same vicinityof same as no investigation and the video was not properlypreserved. Testimony of Walmart Corporate Representative, Megan McGhie: Pages 82-84, lines 11-25; 1-25; and 1-4 Aaron Papero: Would it have been important,in this case, for Walmart to go back and try to determine when and how the batteryhas got onto the floor? Megan McGhie: Um, not-- not necessarilyfor this case. Aaron Papero: Why not? Megan McGhie: Because Walmart believes that the-- the Plaintiff threw himself on the floor,that he didn't actuallyslipon the batteryacid. Aaron Papero: Well, that's based on-- on one singleemployee, right? Megan McGhie: That's based on the statement that she made, yes. Aaron Papero: Right. So-- so Walmart's decision with regards to either further investigatingthe incident,uh, or using the video as a trainingdevice is based upon the statementof-- of one-- one associate? Megan McGhie: Well, the associate did what she was supposed to do. She guarded the spilland waited for somebody to come and clean it up. Aaron Papero: Right. But my question is Walmart's decision to, you know, either this or to-- to look at the video as-- as some type oftrainingpotential not further investigate is based upon the statement of-- of one associate. Megan McGhie: Well, yes, because o f the circumstances of the incident in some of the facts before the incident. They didn't find it necessary. Aaron Papero: What-- what other circumstances? 'Cause we-- 'cause the video-- 'cause the incident is not capturedon video, right? Megan McGhie: Correct. Correct. Page 3 o f 11 Aaron Papero: And we know that their Walmart is-- is agreeingand-- and is aware that there was indeed batteryacid that was on the floor at the time, is that right?And so- Megan McGhie: Yes. When the-- when Crystal saw it on the floor,that's when the Walmart was made aware of the-- the spillon the floor. Aaron Papero: Does Walmart know how long the-- the batteryacid was on the floor? Megan McGhie: That we're not aware ofthat. Aaron Papero: Does Walmart know the last time there was an associate or an employee in the vicinityof the spilled acid,uh, before the allegedincident occurred? Megan McGhie: No, um, we-- we were justmade aware ofthe spillonce Crystalsaw it. 12. It is Plaintiff's burden to case. One of the ways prove notice in a premises liability in which to do so is by proving constructive notice. Constructive knowledge of a dangerous condition on property may be proven by circumstantial evidence. Freeman v. BellSouth Telecommunications, Inc.,954 So. 2d 45 (Fla.1st DCA 2007). 13. Thus, a defendant may be said to have constructive notice of a dangerous condition if that condition is shown to have existed before the injuryoccurred for a sufficient lengthof time that the defendant should have known of it. Grimes v. Family Dollar Stores of Florida, Inc., 194 So. 3d 424 (Fla.3d DCA 2016); Cisneros v. Costco Wholesale Corp., 754 So. 2d 819 (Fla.3d DCA 2000); Soriano v. B&B Cash Grocery Stores, Inc., 757 So. 2d 514 (Fla.4th DCA 1999), decision quashed on other grounds,cause remanded, 802 So. 2d 315 (Fla.2001); Burnett v. Lower Florida Keys Health Systems, Inc., 722 So. 2d 951 (Fla.3d DCA 1998); Colon v. Outback Steakhouse of Florida, Inc., 721 So. 2d 769 (Fla.3d DCA 1998); Owens v. Publix Supermarkets, 802 So. 2d 315 (Fla.2001). In transitoryforeignsubstance cases, courts look to the length of :Inc., Page 4 o f 11 time the condition existed before the accident occurred. Delgado v. Laundromax, Inc., 65 So. 3d 1087 (Fla.3d DCA 2011). 14. One of the sufficient length of time sufficient to the seminal cases interpreting create an inference is Little v. Publix Supermarkets,Inc., 234 So.2d 132 (4? th DCA 1970). The Court indicated: In action for damages arising out of slipand fall in supermarket, once inference had been drawn that no one else was in aisle where accident occurred for from 15 to 20 minutes, during which nothing dropped, broke or spilled, there was no reasonable inference to indulge in other than that the liquid was on the Iloor for at least 15-20 minutes prior to the fall,which time could be deemed sufficient for defendant to be charged with knowledge of the condition and with having had a reasonable time in which to correct it,which were matters that jury should determine. Id. at 134. 15. Furthermore, there have been issues from the very beginning even obtainingall of video includingdifferent camera anglesin this case. The additional videos were not provided in discovery until many months after initial responses were due and only after several requests and motions filed. 16. The video is and was the only depictionofthe incident which would go a long way in establishing damages and causation while potentially liability, refutingDefendant's version of the incident as described by Defendant, CrystalBurney. 17. Defendant is and causation and therefore the video disputingliability is crucial to Plaintiff's case. 18. "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." Martino v. Wal-Mart Stores, 835 So. 2d 1251, 1257 (Fla.4th DCA 2003). Page 5 o f 11 19. Under Florida law, the remedy for a party failing to produce crucial but unfavorable evidence that is destroyed or inexplicablydisappearsis to impose various discovery sanctions, adverse inferences,or presumptions. See Martino v. Wal-Mart Stores, Inc., 908 So. 2d 342,346- 47 (Fla.2005); see also League of Women Voters of Fla. v. Detzner, 172 So. 3d 363, 391 (Fla. 2015). Spoliationsanctions are imposed depending on "the willfulness or bad faith,if any, of the party responsiblefor the loss ofthe evidence, the extent ofprejudice suffered by the other party or and what parties, is requiredto cure the Sponco Mfg., Inc. prejudice." v. Alcover, 656 So. 2d 629, 630 (Fla.3d DCA 1995). 20. There is a three-prong test to determine whether an adverse inference jury instruction for of evidence spoliation is warranted: (1) whether the evidence existed at one time, (2) whether the spoliatorhad a duty to preserve the evidence, and (3) whether the evidence was importantto an opposing party to prove its case. Golden Yachts, Inc. v. Hall, 920 So. 2d 777 (Fla. 4th DCA 2006). 21. A Defendant is charged with a duty to preserve evidence where it could reasonably have foreseen a claim againstit. Am. Hospitality Mgmt. Co. v. Hettiger,904 So. 2d 547 (Fla.4th DCA 2005); and Adamson v. R.J. Reynolds Tobacco Company, 325 So.3d 887 (2021). 22. where the court must find the spoliator Unlike an adverse presumption instruction, had a strict legalduty to preserve the evidence, an adverse Inference may arise in any situation where potentially self-damaging evidence is lost or destroyedby a party that possessed it. Martino, 835 So. 2d 1251; Golden Yachts, Inc., 920 So. 2d 777. 23. In cases where an adverse inference is warranted, the trial court has broad discretion ofremedies to award the aggrieved party. These remedies include: allowing the aggrieved party to Page 6 o f 11 present evidence of the pre-accidentcondition of the lost evidence and the circumstances and a jury instruction ofan inference that the destroyedor surroundingthe spoliation, lost evidence would be unfavorable to the party that failed to produce it. Id. These remedies may be cumulative, as determined by the judge from the circumstances of each case, in the exercise ofbroad discretion. Id. 24. In Golden Yachts, 920 So. 2d 777, the Fourth District upheld the trial court's use of the adverse jury instruction for failure to preserve evidence. The Plaintiff in that case was injured when he fell aboard a boat because the boat cradle snapped. Id. Two years after the accident,the Plaintiffs and the boat cradle manufacturer requestedinspectionof the boat cradle debris. When the Defendant yacht club owner was unable to produce it the trial court grantedthe request for an adverse inference jury instruction. The Fourth District affirmed the trial court's ruling,noting that, "the lack of crucial evidence in proving their claims and the co-defendant hampered the plaintiffs from proving its defense." Id. at 781. 25. Furthermore, the Florida Supreme Court has held that when the spoliationis intentional,sanctions under Rule 1.380(b)(2)are appropriate, such as prohibitingthe spoliator from supportingcertain claims or defenses, the exclusion of proposed evidence or testimony,or an adverse inference;however, when the spoliationis merely negligent,a rebuttable presumption should apply.Martino, 908 So. 2d at 346; see also League of Women Voters of Fla.,172 So. 3d at 391 ("Floridacourts may impose sanctions,includingstrikingpleadings againsta party that intentionallylost, misplaced, or destroyed evidence, and a jury could infer under such If the evidence was circumstances that the evidence would have contained indications of liability. negligentlydestroyed,a rebuttable presumption of liability may arise."). Page 7 o f 11 26. It is undisputablethat recorded surveillance footage of the area, the Plaintiff and the employees existed,that Defendant was aware of and viewed the footageand therefore should have preserved it,and that Plaintiff is impaired in proving his case and disproving significantly Defendant's statements. The video would have shown the last time a customer and/or employee was of the spill. in the vicinity 27. The appropriatenessof sanctions for failingto preserve evidence depends on: (1) willfulness or bad faith of the responsible party, (2) the extent of prejudicesuffered by the other party, and (3) what is requiredto cure the prejudice.Harrell v. Mayberry, 754 So. 2d 742 (Fla.2d DCA 2000). 28. Walmart failed to timely provide additional surveillance video which was clearly in their possession prior to the filingof this lawsuit which further establishes purposeful intent. The Defendants should not be permittedto make assumptions and testify that Plaintiff's fall was a concocted scheme, nor should they be permittedto argue that they were not on constructive notice of the dangerous condition. Defendants should not be rewarded for their conduct and failure to preserve crucial evidence. 29. Furthermore, this Court should instruct the jury that it is permittedto infer that the disposed or lost evidence would have been unfavorable to the Defendants. 30. In circumstances where critical missing evidence was under the sole control ofthe party againstwhom the evidence might have been used to effect,an adverse inference instruction may be necessary to achieve fairness in the jury'sdetermination of the case. American Hospitality Mgmt. Company of Minnesota v. 904 So.2d 547 (Fla.4th Hettiger, DCA 2005). Page 8 o f 11 31. The ith 41 DCA in Hettigerinstructed trial judges to implement a jury instruction that resembled a jury instruction given in Palmas v. Bambu. S.A. v. E.L. DuPont de Nemours & Co., 881 So. 2d 565 (Fla.3d DCA 2004) which read: You have heard testimony about potential evidence which the party having custody failed to produce. Plaintiffs have argued that this evidence was in defendant's control and would have proven facts material to the issue of negligence. If you find that this evidence was then within defendant's control, that defendant could have preserved this evidence so that it was available for the partiesin preparing for the trial in this case, and that this evidence would have been material in deciding the facts in dispute in this case, then you are permitted, but are not required, to infer that the evidence would have been unfavorable to defendant. Any inference you decide to make should be based on all of the facts and circumstances in this case. 32. party under Florida Rule Courts have the inherent authorityto sanction a spoliating of Civil Procedure 1.380. See Fini v. Glascoe, 936 So. 2d 52, 55 (Fla.4th DCA 2006). "In cases of negligent spoliation,courts prefer to utilize adverse evidentiary inferences and adverse presumptionsduringtrial to address the lack of evidence. In cases involvingintentional spoliation, courts most often strike pleadingsor enter default judgments." Golden Yachts, 920 So. 2d at 780 (citingMartino v. Wal-Mart Stores, Inc., 908 So. 2d 342,346-47 (Fla.2005))."Drastic sanctions, includingdefault,are appropriatewhen a defendant alters or destroysphysicalevidence, and when to proceed without such evidence." Harrell v. Mayberry, demonstrated an inability the plaintiffhas 754 So. 2d 742,745 (Fla.2d DCA 2000); see also Rockwell Int'l Corp. v. Menzies, 561 So. 2d 677, 680 (Fla.3d DCA 1990) (degree of sanctions to be imposed must be related to degree of prejudicesustained by non-offendingparty). Page 9 o f 11 33. Based upon the totality ofthe circumstances presentedand the caselaw cited above, Defendants should be sanctioned for failing to preserve crucial evidence by (1)not being permitted to argue against constructive knowledge; (2) not being permitted to make allegationsthat Plaintiff's fall was done on purpose; (3)strikingcertain of Defendants answers and responses to discovery;and (4)includingan adverse inference instruction to be read to the jury. WHEREFORE based upon the foregoing reasons, Plaintiff,TASHAWN JACKSON, requests that the Court enter an Order grantingthe respectfully Plaintiffs' Motion for Sanctions for Spoliationof Evidence, imposing the requested sanctions outlined above and for any and all other relief this Court deems justand appropriateunder the circumstances. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy ofthe foregoinghas been electronically filed portalon and served through the e-filing this 3 PIst day of May, 2023 to: D. Terrance Hill, Esquire,and Frank L. Madia, Esquire,Marshall Dennehey, 100 NE 3rd Avenue, Suite 1100, Fort Lauderdale, FL 33301, dthill@mdwcg.com; flmadia@mdwcg.com; jrpayton@mdwcg.com. STEINGER, GREENE & FEINER, P.A. nd 2727 N.W. 62 Street Fort Lauderdale, FL 33309 Telephone: (954) 491-7701 Facsimile: (954) 492-5642 Email: apapero@injurylawyers.com cskuratovskiy@injurylawyers.com Attorneys for Plaintiff /s/ Aaron M. Papero, Esq. Aaron M. Papero, Esquire Florida Bar No.. 59782 Page 10 of 11 EXI IIBIT ,, 668 Page 11 of 11 Aaron Papero From: Madia, Frank L. Sent: Friday,November 4, 2022 9:51 AM To: Aaron Papero CC: Christine Skuratovskiy Subject: RE: Jackson Good morning Aaron. I just checked my video and it does the same thing. Not sure how to resolve the technical issues with this. Thanks. Frank L. Madia Attorney at Law DO 315 E. Robinson St., Suite 550, Orlando, FL 32801 Direct: (407) 420-4410 I Main: (407) 420-4380 I Fax: (407) 839-3008 bio I e-mail I website DENNEHEY Dri>.. <1,?F..%?,#il>ri- This e-mail transmission and any documents, files or previous e-mail messages attached to it,are confidential and are protected by the attorney-client privilege and/or work product doctrine. If you are not the intended recipient, or a person responsible for delivering it to the intended recipient, you are hereby notified that any review, disclosure, copying, dissemination, distribution or use of any of the information contained in, or attached to this e-mail transmission is STRICTLY PROHIBITED. If you have received this transmission in error, please immediately notify me by forwarding this e-mail to FLMadia@.MDWCG.com, or by telephone at (407) 420-4410 and then delete the message and its attachments from your computer. From: Aaron Papero Sent: Friday,November 4,2022 9:39 AM To: Madia, Frank L. Cc: Christine Skuratovskiy Subject: Jackson WARNING: This email originated outside MDWCG Hey Frank, I forgot about this but I have been asking for a better video in this case. The one originallysent to us does not work between 5:48:17 and 6:31 something. The video just stops and then starts back moving around the 6:31 mark. Please send that over asap. AarONPaperO. ESg. Litigation Attorney & Feiner S?einger,Greene * INJURYLAWYERS.COM Address: 2727 NW 62' ind Street Fort Lauderdale, FL 33309 Direct Phone & Fax: 954-320-6908 Main Office: 954-491-7701 1 Email: apapero@iniurvlawvers.com cskuratovskiy@iniurylawyers.com This e-mail and any document(s) accompanying this transmittal contains information from Steinger, Greene & Feiner that is confidential and/or legallyprivileged. This information is intended only for the use of the individual or entity named above. 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