In Wackenhut Corp. v. Gutierrez, Tex. S. Ct. No. 12-0136, February 6, 2015, the Texas Supreme Court reversed a jury verdict because of an improper spoliation instruction, and held that the Defendant had preserved that error in a pretrial written response to the motion for a spoliation instruction.
Wackenhut Corp. is a personal injury case arising from a collision between Wackenhut’s charter bus and Mr. Gutierrez’s car. Wackenhut’s bus had cameras. They were set up to automatically loop over, thus erase data, every seven days. One camera outside the passenger door may have captured the collision. But, Wackenhut did not preserve the recording; it was “looped over” in the normal course.
Two days after the wreck, Gutierrez delivered a letter to Wackenhut with his version of events. Wackenhut completed internal forms and forwarded them and the letter to corporate headquarters. Two years later Gutierrez sued.
Before trial, Gutierrez moved for a spoliation determination and sanctions arguing he was entitled to a presumption that the erased recording would be unfavorable to Wackenhut. In response, Wackenhut argued there was no evidence of either intentional or negligent spoliation; sanctions, including any spoliation instruction, were not warranted; and that all evidence of alleged spoliation should be excluded.
After Gutierrez put on his case, the trial court orally ruled that Wackenhut had negligently spoliated evidence. It ordered a spoliation instruction was to be part of the jury charge.
At the charge conference Wackenhut did not object to the instruction. But, immediately after the charge was read to the jury, Wackenhut’s counsel approached the bench and made the objection which the trial judge noted without further comment.
The jury found for Gutierrez, awarding him over $1.2 million. Wackenhut appealed.
Overruling Wackenhut’s only issue – that the trial court erred in submitting the spoliation instruction – the Fort Worth court of appeals affirmed. Relying on Rule 272 of the Texas Rules of Civil Procedure (see also Rule 274), it said Wackenhut waived complaint by failing to object until after the charge had been read to the jury and by failing to provide a specific ground for the objection.
The Supreme Court reversed.
First, on the preservation point, the court reiterated, “‘[t]here should be but one test for determining if a party has preserved error in the jury charge, and that is whether the party made the trial court aware of the complaint, timely and plainly, and obtained a ruling.’” (Quoting State Dep’t of Highways & Pub. Transp. v. Payne, 838 S.W.2d 235, 241 (Tex. 1992)). The court observed that Wackenhut made the trial court aware of its objection at the pretrial hearing – timely. Wackenhut had argued that (1) it had no duty to retain the video prior to being served with citation, (2) there was no evidence that the tape would actually have recorded the accident, (3) there was no evidence that Wackenhut intentionally or negligently destroyed the recording because it was looped over in the regular course of business before Wackenhut had notice of any claim, and (4) any spoliation did not prejudice Gutierrez because of the availability of other evidence – plainly. Wackenhut specifically argued that a spoliation instruction would be improper. And, the Supreme Court noted, Wackenhut obtained a ruling. The trial court ruled during trial that the instruction would be submitted. (The Supreme Court also noted that the trial judge recognized during the hearing on motion for new trial that the instruction was given over Wackenhut’s objection.)
The Supreme Court concluded there was no waiver and turned next to the propriety of submitting the instruction.
Referring to its recent decision in Brookshire Brothers, Ltd. v. Aldridge, 438 S.W. 3d 9 (Tex. 2014), the court reiterated “specific restrictions” on a trial court’s discretion to give a spoliation instruction. The instruction can be given only if the trial court “finds that (1) the spoliating party acted with intent to conceal discoverable evidence, or (2) the spoliating party acted negligently and caused the nonspoliating party to be irreparably deprived of any meaningful ability to present a claim or defense.” (Citing Brookshire Bros., 438 S.W. at 23-26).
The trial court did find negligent spoliation. Assuming that finding correct, the Supreme Court nevertheless concluded that the spoliation did not irreparably deprive Gutierrez of any meaningful ability to present his claims. The court noted a great deal of other evidence including testimony from both drivers and an eyewitness; witness statements prepared at the time of the accident; a police report and officer testimony; photographic evidence, etc. The trial court abused its discretion so, the Supreme Court was left to determine whether that constituted reversible (harmful) error.
Quoting from Brookshire Brothers (and its predecessor, Wal-Mart Stores, Inc. v. Johnson, 106 S.W.3d 718, 724 (Tex. 2003)), the court wrote, “if a spoliation instruction should not have been given, the likelihood of harm from the erroneous instruction is substantial, particularly when the case is closely contested.” See Brookshire Bros., 438 S.W.3d at 29 (quoting Wal-Mart Stores, supra). In this closely contested case where Gutierrez’s lawyer referred to the video in both his opening statement and closing argument and, where the court characterized the video as of “highly speculative probative value” (it literally was a dark and stormy night), the Supreme Court reversed and remanded the case for a new trial.
No information in this article is intended to constitute legal advice. For specific legal advice, please contact an attorney.
If you have questions about spoliation instructions or error preservation, please contact Michael D. Conner.