RHODA COFIELD VS IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI No.2013-CA-00037-COA Il t.. r Pr1I~TIFF / APPELLANT IMPERIAL PALACE OF MISSISSIPPI LLC DEFENDANT/APPELLEE REPLY BRIEF OF APPELLANT RHODA COFIELD Appeal from the Circuit Court of Harrison County, Mississippi Second Judicial District Civil Action No. A2402-2010-10 Honorable Lawrence P. Bourgeois, Jr., Circuit Court Judge ORAL ARGUMENT REQUESTED i I _ i.. James E. Smith,Jr., MSB#_ 203 N. Pearl St. Carthage, MS 39051 Phone: (601) 267-5611 Fax: (601) 267-3641 COUNSEL FOR APPELLANT/PLAINTIFF RHODA COFIELD
TABLE OF CONTENTS (REPLY BRIEF) Page Table of Contents....1 Table of Authorities... ii Request for Oral Argument.... iii ARGUMENT... 1-6 1. DEFENDANT'S CONDUCT IN DESTROYING THE VIDEO TAPE IS THE SOLE REASON FOR PLAINTIFF'S INABILITY TO PROVE THE REASON WHY THE WATER WAS ON THE FLOOR AND THE JURY SHOULD BE ALLOWED TO CONSIDER THIS FACT... 1-3 II. III. DEFENDANT HAD A DUTY TO RETAIN THE VIDEO TAPE AND FAILED TO DO SO....4-5 PLAINTIFF HAS NEVER SOUGHT OR CLAIMED AN INDEPENDENT CAUSE OF ACTION FOR SPOLIATION OF EVIDENCE... 5-6 Conclusion... 6-9 Certificate of Service... 1 0 -i-
TABLE OF AUTHORITIES (REPLY BRIEF) Cases Page Elston v. Circus Circus MississiPPi, Inc., et al No. 2003-CA-02584-COA, 908 So.2d 771 (Ct. of App. 2005)... 3 Grand Casino Biloxi v. Hallmark No. 2000-CC-01115-SCT, 823 So.2d 1185 (Miss. 2002)... 3, 7 Johnson v. Imperial Palace Casino of Mississippi, et 01 (A 2402-10-002, Cit. Ct. Harrison County, DistrlctTwo, 6/26/2012)... 4 Thomas v. Isle of Capri Casino and CDS Systems, No. 1999-SA-01476-SCT, 781 So.2d 125 (2001)... 2, 3 I. I 1. -11-
l. REOUEST FOR ORAL ARGUMENT Pursuant to Mississippi Rules of Appellate Procedure, Rule 34(b), Appellant hereby requests this Honorable Court grant oral argument in this matter. Appellant contends oral argument will be helpful to this Honorable Court due to a conflicting Harrison County Circuit Court ruling with the same defendant on similar facts where the Circuit Court denied summary judgment. Further, the numerous prior decisions in slip and fall cases may not provide guidance in matters such as this where material evidence was intentionally destroyed by the defendant prior to the plaintiff being allowed to inspect the evidence, even when the defendant knew of the probative value and materiality of the evidence it unilaterally controlled.!. 1 ~ -111-
ARGUMENT I. DEFENDANT'S CONDUCT IN DESTROYING THE VIDEO TAPE IS THE SOLE REASON FOR PLAINTIFF'S INABILITY TO PROVE THE REASON WHY THE WATER WAS ON THE FLOOR AND THE JURY SHOULD BE ALLOWED TO CONSIDER THIS FACT In its brief, defendant Imperial Palace continues to ignore the fact that plaintiffs inability to prove the facts of the water spill can be laid directly at the feet of defendant due to its conscious decision to destroy the video tape which would have demonstrated when the water was placed on the floor and by whom. (Appellee's brief, Sec. 1, pp 7-10). The defendant attempts to insulate its conduct by mischaracterizing the inquiry to be made into this matter. As an example, defendant points to the testimony of Julia Jones, defendant's risk manager, that there were no other incidents of this type for one year prior to the incident at bar. This is irrelevant to the matter at bar. (Appellee's brief, Sec. B (6), p. 22). More importantly, defendant highlights Jones' testimony that during this time period, water on the floor in the elevator lobby was not an issue discussed by risk management. (Appellee's brief, Sec. B (6), p. 22). This is exactly why this incident occurred. Defendant did not follow the good and accepted industry practices by failing to regularly inspect the area according to plaintiffs liability expert Fred Del Marva (Rec. Vol. 5, p. 643-644, affidavit of Fred Del Marva, ~~78, 79). The real issue as to the water on the floor is not its actual existence but rather, whether sufficient evidence of genuine issue of material fact were presented to allow a jury to consider the source of the water and its time on the floor. The jurisprudence is clear that when evidence is lost or destroyed by one party, thus hindering the other party's ability to prove his case, a presumption is raised that the missing evidence would have been unfavorable to the party responsible for its loss. -1-
Thomas v. Isle if Capri Casino and CDS Systems, No. 1999-SA-01476-SCT, 781 So.2d 125, 133 (Miss. 2001). Plaintiff is unable to provide evidence of the temporal nature of the water. However, plaintiff has provided adequate probative evidence as to the probable cause of the spill, none of which is speculation. but rather. supported by evidence. Appellant has demonstrated that defendant: did not have a corporate policy, procedure and/or protocol for inspecting the area in question (Rec. Vol. 5, p. 606-611, Jones deposition); did not actually inspect the area in question at any time prior to the incident other than to have irregular, occasional, and unscheduled inspections by security officers (Rec. Vol. 2, p. 247-248); failed to have a regular inspection of the area even though it knew the area was heavily traveled; knew that invitees would come down the elevator with wet cloths and towels and drip water in the area (Rec. Vol. 4, p. 468, Hoffer deposition); did not have any documents demonstrating a regular cleaning schedule for the area, other than one unsigned and undocumented schedule of when certain activities should take place (Rec. Vol. 2, p. 247-248); and, failed to comport with the good and accepted standards and practices of the industry concerning warning invitees of potential dangerous conditions (Rec. Vol. 5, p. 642-645, affidavit of Fred Del Marva, ~~66-83). There also is the video, which besides showing the incident, demonstrates the use of the elevators by defendant's employees with dishes and glasses, and testimony from defendant's own employees that they were aware water was placed on the floor of the elevator lobby as a result of hotel patron who used the swimming pool passing through the area and dripping water. (Rec. Vol. 4, p. 468, Hoffer deposition). From the start of this case, defendant has argued that plaintiffs case did not have any merit because she could not prove the issue as to how and when the water came to be placed on the floor. -2-
This continues to be their main point in their brief. However, defendant has never answered the question, and in fact cannot answer the question, of what would the video demonstrate in the hour or two prior to the incident. The only person who knows what the original video contained is Paul Dillon, defendant's investigator in this matter. He could have made a complete and comprehensive review of the entire period of time before the fall, but chose only to retain the 26 seconds before the fall, knowing full well at the time this matter would probably end up in a claim by plaintiff. (Rec. Vol. 3, p. 59, lines 6-9, Dillon deposition). Defendant also tries to insulate itself from culpability by citing the testimony of Tim Widas (Appellee's brief pp. 18-20) who claimed that the earlier part of the video was irrelevant. But relevancy cannot be evaluated without the full range of circumstances being considered, which they were not by Dillon, or in hindsight, by Widas. This is exacdy why the videotape should have been retained. Dillon testified he knew this was a liability matter from the date of the incident (Rec. Vol. 4, p. 489-490). Common sense would be to save the video. But knowing the video would also provide evidence as to the source of the water, defendant had every motivation and opportunity to destroy the evidence thereby freeing itself from possible fault. This seemed to be a common practice by defendant considering this case and the Johnson v. IP matter. (See, infra, Sect. II, "Defendant Had a Duty to Retain the Video Tape and Failed to Do So"). Widas' testimony that the system overwrote itself after seven (1) to ten (10) days also is of no moment, (Appellee's brief, p. 16,23-24) The tape was reviewed by Dillon immediately after the fall and could have been archived at that time. Many of the cases cited by plaintiff concerned motions for summary judgment in slip and fall cases where the matter was set back to the trial court after it improperly granted summary -3-
judgment. See, Thomas v. Isle of Capri Casino and CDS Systems, No. 1999-SA-01476-SCT, 781 So.2d 125 (2001); Grand Casino Biloxi v. Hallmark No. 2000-CC-01115-SCT, 823 So.2d 1185 (Miss. 2002); Elston v. Circus Circus Mississippi, Inc., et ai, No. 2003-CA-02584-COA, 908 So.2d 771 (Ct. of App. 2005). A jury is entitled to decide if the destruction of the video tape for the time prior to the plaintiffs fall reflects the fact it would show unfavorable evidence as to defendant's conduct. The jury must be allowed to know the video tape was destroyed and consider this in light of the other facts and defendant's argument as to plaintiffs inability to prove the how and why of the water on the elevator lobby floor. II. DEFENDANT HAD A DUTY TO RETAIN THE VIDEO TAPE AND FAILED TO DO SO The duty to retain the evidence contained on the video tape was discussed at length in plaintiffs brief. (Appellant's brief, Sect. II (B)(1), pp. 17-27). Defendant attempts to deflect this argument by claiming it cannot find a duty in the law to retain what defendant terms an "unspecified amount of coverage" (Appellee's brief, A (2), p.12). This arguments ignores two facts. First, when plaintiffs counsel sent a certified letter on October 7, 2008 to defendant requesting "that any and all videotapes, videos, photographs, digital images, statement and or any other investigation of this incident be preserved as evidence in connection with this claim." (Rec. Vol. 2, p. 237-239), plaintiff did not know that defendant had already unilaterally destroyed the video tape in it possession of the hours before the incident which would have conclusively proved how long the water was on the floor and how it got there. Further, plaintiff was never told that the tape would be destroyed if a "claim" was not presented in a timely fashion. According to defendant's risk -4-
manager, Julie Jones, nothing is saved until a written claim is made by the guest or an attorney. However. a claim form for a guest does not exist. nor did written coj;porate procedures. policies. protocols or rules as to what has to be done to trigger a claim exist in the risk management office in September 2008. In fact, Ms. J ones testified that transporting a guest to a hospital who slipped and fell was insufficient to trigger a claim. (Rec. Vol. 5, p. 606-611, Jones deposition). A second letter was send on the October 31, 2008, in which counsel for plaintiff reiterated his demand "that any and all incident report(s), surveillance videos, etc... be saved in contemplation of litigation. If there is any failure to preserve the aforementioned items, it will give rise to a spoilation claim and a presumption of liability." (Rec. Vol. 2, p. 240). Second, Judge Clark in Johnson had little difficultly in finding a duty to preserve video tape evidence of a slip and fall As Circuit Court Judge Clark so aptly stated in Johnson, IF made a conscious decision to not preserve additional video. Many of the Mississippi cases dealing with spoilation of evidence involve the loss or destruction of material that a party was required to preserve pursuant to a regulation or statue regardless of actual or potential litigation. It seems to the Court that a duty to preserve evidence my also arises through an agreement, contract, statue, special circumstances or the voluntary assumption of a duty by affirmative conduct. If such a duty arises, the question becomes whether a reasonable person should have foreseen that the evidence was material to a potential civil action. Johnson v. Imperial Palace Casino of Mississippi, et at, (A 2402-10-002, Cir. Ct. Harrison County, District Two, opinion pp. 5-6, 6/26/2012). There are now two (2) documented cases where defendant IF destroyed video tape of a slip and fall. Contrary to defendant's unsupported claim that it did not have a duty to preserve the video,, tape evidence, a duty does exist by the special circumstances of this matter and by the voluntary assumption of the duty by the affirmative conduct of defendant in destroying that part of the video tape which would have allowed the parties to determine the length of time the water was on the -5-
floor and how it got on the floor. The defendant knew litigation would more than likely arise in this matter and therefore it had a duty to preserve all the video tape, not just a selected portion. III. PLAINTIFF HAS NEVER SOUGHT OR CLAIMED AN INDEPENDENT CAUSE OF ACTION FOR SPOLIATION OF EVIDENCE In its brief, defendant attempts to resurrect the argument that plaintiff does not have independent cause of action for spoliation of evidence. (Appellee's brief, B (2), pp. 14-15) The argument is one solely created by defendant in its initial filing with the court below, in an apparent attempt to redirect the focus of the court from plaintiffs real claims and causes of action. Plaintiff has never alleged she is entided to an independent cause of action for spoliation of evidence. In fact, from beginning of this matter, plaintiff has sought a ruling from the court that as a result of defendant's failure to preserve the video of the time before the incident the jury would be instructed that the evidence would be adverse to defendant. This was the result in Johnson and must be the result in this matter. CONCLUSION Plaintiff! Appellant has provided overwhelming evidence sufficient to overcome a motion for summary judgment.,, As stated in her original brief and again herein, plaintiff is unable to prove an affirmative act by defendant which caused the dangerous condition - a water puddle in front of an elevator - which ultimately led to the incident. But plaintiff was precluded from doing so only because defendant destroyed the evidence which would have conclusively demonstrated when the water was spilled. how long it was there and by whom it was spilled. -6-
Plaintiff also has been unable to show defendant violated its internal procedures regarding maintenance or inspection because. as testified by defendant's employees. none existed. Further, plaintiff has provided unrebutred and unchallenged expert evidence as to what actions should have been undertaken by defendant to keep the premises in a reasonable safe condition and how the defendant's inspection practices deviate from the applicable standard of care. And finally, there is unrebutted proof that the defendant had evidence in its possession to show when the water was placed on the floor, by whom it was placed on the floor and how long it was on the floor. However, as defendant has done in the Johnson matter, at the same facility, it unilaterally destroyed the evidence in its possession knowing full well of its importance in possible litigation. There is no question that defendant at bar knew the evidence was material to the claim and its protestations to the contrary are vitiated by the testimony of its employees in this matter, and the facts of the Johnson case, where the same intentional destruction of evidence was revealed and found to be unacceptable. It is for this Honorable Court to decided whether this type of conduct is acceptable. The proof existed as to how the water got on the floor. Defendant cannot be allowed to escape responsibility it may have for the spill by merely not retaining the evidence in its sole possession, and thereby riddling "itself of any evidence that may have threatened its own interest." Grand Casino Biloxi, 823 So.2d, at 1195. Entities, such as defendant, should not be allowed the unfettered ability to control evidence, fail to preserve evidence, and then argue a party could not prove its case because the evidence supporting the case did not exist. -7-
The significance of the Thomas and Grand Casino Biloxi cases to the matter at bar cannot be overstated. Both are casino cases concerning the spoliation of evidence by the casino. In both cases, the Mississippi Supreme Court rejected the exact same argument posited by defendant at bar. For the reasons set forth in Thomas and Grand Casino Biloxi the Circuit Court's decision granting defendant's motion for summary judgment must be reversed. To do otherwise, would be to countenance a defendant spoiling any evidence that a plaintiff may have used to support his claim and, at the same time erasing any evidence that may be harmful to its case. Forcing an innocent litigant such as plaintiff to prove a fact or facts rendered unprovable by the actions of a defendant in destroying the evidence which would provide the proof is unacceptable. The civil justice system cannot allow one party to manipulate the proof by consciously destroying evidence knowing full well there would not be consequences for its actions. The course of conduct by defendant in this matter was anticipated 10 years ago in Thomas and Grand Casino Biloxi, as noted above. This Honorable Court's rulings in those cases are pertinent, applicable and controlling in this matter. The exact same course of conduct by the same defendant as that at bar was made readily apparent in Johnson v. IP, and the Circuit Judge Clark found it unacceptable. It would also be unacceptable if the same course of conduct, which Plaintiff has demonstrated in great detail, is explicidy allowed in the case at bar as a result of the granting of the summary judgment in this matter. For these reasons and those contained in the original brief, Appellant contends the decision below must be reversed and this matter remanded for trial. Respectfully submitted this 21" day of October, 2013. -8-
Pearl St. Carthage,11S 39051 Phone: (601) 267-5611 Fax: (601) 267-3641 COUNSEL FOR APPELLANT/PLAINTIFF RHODA COFIELD,. -9-
CERTIFICATE OF SERVICE I, James E. Smith, Jr., attorney for Appellant, do hereby certify that I have this day mailed and delivered by electronic mail the following, a true and correct copy of the above and foregoing Brief of Appellant to: Patrick R. Buchanan, Esq. BROWN BUCHANAN, P.A. 796 Vieux Marche Suite 1 P.O. Box 1377 Biloxi, Ms. 39533-1377 Attorney for Defendant! Appellee, Imperial Palace of Mississippi LLC Hon. Lawrence P. Bougeois, Jr. Circuit Court Judge 2 nd Judicial District 1801 23rd Avenue Gulfport, MS 39501 This the 21" day of October, 2013. -10-