Michelle Hodge v.  Wal-Mart Stores, Incorporated

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 MICHELLE HODGE,
Plaintiff-Appellant,
v. No. 03-1597 
WAL-MART STORES, INCORPORATED,
Defendant-Appellee. 
Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
David G. Lowe, Magistrate Judge.
(CA-02-714)
Argued: January 22, 2004
Decided: March 10, 2004
Before WILKINSON, LUTTIG, and TRAXLER, Circuit Judges.
Affirmed by published opinion. Judge Luttig wrote the opinion, in
which Judge Wilkinson and Judge Traxler joined.
COUNSEL
ARGUED: James Broome Thorsen, THORSEN & SCHER, L.L.P.,
Richmond, Virginia, for Appellant. Michael Scott Bucci, MORRIS &
MORRIS, Richmond, Virginia, for Appellee.

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OPINION
LUTTIG, Circuit Judge:
Appellant, Michelle Hodge, was injured by mirrors that fell from
an upper shelf of a mirror display in a Richmond, Virginia, outlet of
Wal-Mart Stores, Inc. ("Wal-Mart"). Hodge thereafter brought an
action against Wal-Mart sounding in negligence. Hodge claimed that
given the foreseeability of mirrors falling from shelves and injuring
a customer in circumstances similar to those surrounding her accident,
Wal-Mart had constructive notice that the mirror display constituted
an unsafe condition. Additionally, Hodge claimed that Wal-Mart
deliberately failed to question a customer who witnessed the incident
about what happened, requiring the application of an adverse infer-
ence for spoliation of evidence. The district court granted summary
judgment to Wal-Mart on the grounds that Hodge presented insuffi-
cient evidence under governing Virginia law to support her negli-
gence claim, and that no spoliation inference was warranted. Finding
no reversible error, we now affirm.
I.
A.
The record evidence, viewed in the light most favorable to Hodge,
shows the following. On July 17, 2001, Hodge went with her son, Jes-
sie, to the Richmond Wal-Mart to purchase a mirror. Upon arriving
at the aisle in which mirrors were displayed for sale around 6:00 p.m.,
she noticed that the mirrors were in a "state of disarray" and not
arranged as they should have been; the area was "a mess." J.A. 33,
36, 41. Hodge noticed larger mirrors placed in front of smaller ones,
and that the mirrors were not arranged by price or size. Some of the
mirrors were located on an upper shelf as high as six feet off the
ground and slanted against the back of the shelf, restrained only by
a lip on the shelf one and a half inches high.
Shortly after arriving in the display area, Hodge was briefly dis-
tracted. When she turned her attention back to the display, she real-
ized that she needed to move the mirrors around to examine them, so
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she bent over to place Jessie on the floor. As she stood up, she was
struck by several mirrors that fell from the upper shelf, and suffered
substantial injuries. A woman that Hodge had been talking to only a
moment earlier ("the witness") exclaimed "oh my God, those mirrors
just fell on that girl." J.A. 53. Hodge had not moved or touched the
mirrors.
The first employee on the scene was assistant manager Many Bow-
man, who heard the glass shatter over Hodge and arrived while the
witness was still present. Hodge testified that someone (probably
Bowman) then directed another employee to "get some restraints to
hold the mirrors back." S.J.A. 41. After some time passed, the witness
asked Bowman if she could leave, but Bowman does not remember
answering the witness’ question. When Hodge noticed the witness
leaving, Hodge told Bowman that the witness had seen everything,
and urged her to get the witness’ name, contact information, and
account of the events. Although it was Wal-Mart’s policy to request
information about accidents from potential witnesses, Bowman
declined and, pointing to the camera pod at the end of the aisle, stated
that "[e]verything we need will be on that camera right there." S.J.A.
55. The witness then left.
Bowman eventually went to look for the witness after another Wal-
Mart employee arrived at the accident scene. Bowman paged the wit-
ness over the intercom and searched the grocery area, but was unable
to find her. Bowman later testified that she did not want to follow the
witness immediately after the accident because she did not want to
leave the area of the accident unsecured, and because she thought,
incorrectly as it turned out, that the security cameras captured the
events. The witness’ identity was never discovered.
Wal-Mart was aware of the tendency for the mirror display in this
store to become disorganized over the course of the day, most often
through customers moving mirrors around while shopping. To
address this problem, Wal-Mart had employees check the display
periodically and rearrange the mirrors if required. One such employee
was Jason Chalmers, who not only inspected and adjusted the mirrors
at three separate times each day, but also as needed, as he passed by
the display during the course of other duties. Chalmers provided
uncontradicted testimony that he checked the mirrors around 3:30
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p.m. — two-and-a-half hours before the accident — but that the dis-
play sometimes became disordered within an hour of his inspection.
B.
Hodge filed suit against Wal-Mart in federal district court, which
had diversity jurisdiction over the case. Applying the negligence law
of Virginia, the district court concluded that Hodge failed to establish
the existence of an unsafe condition in the store because she could not
provide any evidence as to why the mirrors fell and that, even if she
could show that the display constituted an unsafe condition, she had
produced no evidence that Wal-Mart could have foreseen the risk of
danger. The district court also refused Hodge’s request for an adverse
inference for spoliation of evidence, reasoning that Hodge did not
prove that Bowman’s conduct regarding the witness was willful.
Accordingly, the district court granted summary judgment to Wal-
Mart and dismissed the case. See Hodge v. Wal-Mart Stores, Inc., No.
3:02CV714 (E.D. Va. Apr. 18, 2003).
II.
On appeal, Hodge assigns error to the district court’s conclusions
as to the merits of her negligence claim and as to her request for a
spoliation inference. Because a decision that an adverse inference
based on spoliation was warranted would affect our analysis of the
merits of Hodge’s negligence claim, we address her spoliation claim
first. Because the evidence does not show that Bowman willfully lost
the witness’ potential testimony, we conclude that the district court
did not abuse its discretion in refusing to grant such an inference.
A.
The imposition of a sanction (e.g., an adverse inference) for spolia-
tion of evidence is an inherent power of federal courts — though one
"limited to that [action] necessary to redress conduct ‘which abuses
the judicial process’" — and the decision to impose such a sanction
is governed by federal law. Silvestri v. General Motors Corp., 271
F.3d 583, 590 (4th Cir. 2001) (quoting Chambers v. NASCO, Inc.,
501 U.S. 32, 45-46 (1991)). Moreover, spoliation is not a substantive
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claim or defense but a "rule of evidence," and thus is "administered
at the discretion of the trial court." Vodusek v. Bayliner Marine Corp.,
71 F.3d 148, 155 (4th Cir. 1995). Accordingly, even when reviewing
the grant of summary judgment, the refusal to apply a spoliation infer-
ence must stand unless it was an abuse of the district court’s "broad
discretion" in this regard. Cole v. Keller Indus., Inc., 132 F.3d 1044,
1046-47 (4th Cir. 1998).
B.
Hodge argues that the district court erred by refusing to apply an
adverse inference based on Wal-Mart’s alleged spoliation of relevant
evidence. More specifically, Hodge claims that, given her own inca-
pacity, Bowman’s failure even to try to obtain the witness’ account
of the events or her identification and contact information (which
could have allowed Hodge to obtain that account later) constituted a
willful loss of evidence, requiring a spoliation inference in Hodge’s
favor.
The spoliation of evidence rule allows the drawing of an adverse
inference against a party whose intentional conduct causes not just the
destruction of evidence, as Wal-Mart intimates, but also against one
who fails to preserve or produce evidence — including the testimony
of witnesses. See Vodusek, 71 F.3d at 155-56 (noting that failure to
produce a witness "that naturally would have elucidated a fact at
issue" may justify an adverse inference); NLRB v. Ford Radio &
Mica Corp., 258 F.2d 457, 463 (2d Cir. 1958) (noting that when moti-
vation of employer in taking certain action is at issue, "[the General
Counsel’s] refusal to elicit th[e] readily available and crucial testi-
mony of a disinterested witness may well be taken to mean that the
information was adverse to his case."). But such an inference "cannot
be drawn merely from his negligent loss or destruction of evidence;
the inference requires a showing that the party knew the evidence was
relevant to some issue at trial and that his willful conduct resulted in
its loss or destruction." Vodusek, 71 F.3d at 156.
According to Hodge, the evidence in this case supports an infer-
ence that Bowman knew that it was likely that Wal-Mart would be
exposed to legal liability from the accident, and that the witness could
provide evidence that would adversely affect Wal-Mart’s legal posi-
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tion, justifying an inference that Bowman’s failure to try to obtain the
witness’ account was deliberate. Hodge claims that, in concluding
that no spoliation inference was justified because of lack of proof that
Bowman’s conduct was willful, the trial court misconstrued Vodusek,
the only authority it cited on this ground. In turn, she contends, the
court confused willful conduct (which is sufficient to infer spoliation)
with "bad faith" — which "suffices to permit [a spoliation] inference,
[but] is not always necessary." Id. at 156. She claims that what is rele-
vant under Vodusek is that Bowman deliberately chose not to obtain
the necessary information from the witness, and not Bowman’s poten-
tially bad-faith reasons for so choosing (e.g., to reduce the strength
of Hodge’s case).
While Hodge’s recitation of the requisite level of intent is correct,
the evidence does not support a claim that Bowman willfully lost the
witness’ contact information or potential testimony. Vodusek did hold
that an adverse inference based on destruction or loss of evidence
could be justified where, in examining a boat after an accident, plain-
tiff’s experts "deliberate[ly]" (though not necessarily in bad faith) ren-
dered portions of the boat useless for examination by defendants. Id.
at 155-57. Here, however, Bowman never possessed the witness’ con-
tact information or account, and since she could not have forced the
witness to tell her anything, Bowman did not have control of that infor-
mation.1
Properly construed then, Hodge’s claim of spoliation is supported
only by Bowman’s failure to question the witness while the witness
was present, her failure to respond to the witness’ request to leave the
1It is true that the duty to preserve material evidence imposes on a
party an "obligation to give the opposing party notice of access to the
evidence or of the possible [loss or] destruction of the evidence if the
party anticipates litigation involving that evidence," even if the party
"does not own or control that evidence." Silvestri, 271 F.3d at 591. But
assuming Bowman can be said to have had access to the witness in some
sense, that access was under sufficiently hurried conditions and for a suf-
ficiently brief time as to take it outside of the spoliation rule’s ambit.
And to the extent Bowman’s failure to detain and question the witness
after the witness asked to leave is a potential "loss" of evidence for these
purposes, Hodge clearly had notice of the witness’ impending departure.
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scene, and, once Bowman realized the witness had left the accident
scene, Bowman’s decision to stay with Hodge instead of following
the witness. In essence, Hodge would require the application of a spo-
liation inference based on Wal-Mart’s supposedly deliberate failure to
reasonably investigate the causes of an accident on store premises —
a proposition for which Hodge cites no authority. While the evidence
suggests that Bowman perhaps should have queried the witness about
the accident before the witness left, there is no reasonable basis in the
evidence to infer that Bowman acted in bad faith by, e.g., intention-
ally deceiving Hodge or the witness about the security camera’s capa-
bilities when explaining why the witness did not need to stay.
Accordingly, we cannot conclude that Bowman’s actions constituted
a willful loss of evidence resulting in an abuse of the judicial process,
such as would warrant a finding of spoliation.
III.
Having concluded that no sanction for spoliation was justified, we
next address Hodge’s claim that the district court erred in granting
summary judgment against her on the merits of her negligence claim.
We review this determination de novo, construing the evidence in the
light most favorable to Hodge. See Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986). While we decline to rest on the district
court’s reasoning, we conclude that its decision to grant summary
judgment was ultimately correct. Specifically, even assuming that the
mirror display posed an unsafe condition that resulted in her injury,
Hodge has neither evidence that Wal-Mart had actual notice of the
condition nor evidence of when the condition arose, and thus cannot
prove that the condition existed sufficiently long for a jury to con-
clude that Wal-Mart had constructive notice of it.
A.
The general rule in Virginia is that a plaintiff must, in order to
establish a defendant’s negligence, prove "why and how the incident
happened"; "if the cause of the event is left to conjecture, guess, or
random judgment, the plaintiff cannot recover." Town of West Point
v. Evans, 299 S.E.2d 349, 351 (Va. 1983) (emphasis added). To prove
negligence in a premises liability case such as this, the plaintiff must
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first prove the existence of an unsafe or dangerous condition2 on the
premises. Kendrick v. Vaz, Inc., 421 S.E.2d 447, 450 (Va. 1992).
Applying these principles to reject Hodge’s claim, the district court
recited two of Hodge’s theories for "why" the mirrors fell — either
that a Wal-Mart employee (who the evidence shows only was nearby
unloading a pallet) bumped the display or that a customer handled the
mirrors and replaced them in a haphazard manner. But Hodge sug-
gests additional theories as well, including that Wal-Mart was negli-
gent in stacking the mirrors or in not providing restraints for them,
that Wal-Mart did not check the mirror display frequently enough,
and that Wal-Mart did not check the display after operating
machinery (the pallet loader) in the area. Hodge, admittedly, has no
evidence that any particular theory was "why" the mirrors fell. The
district court concluded, and Wal-Mart contends on appeal, that with-
out such evidence Hodge’s negligence claim necessarily must fail.
However, a plaintiff who can show both that an unsafe condition
existed on store premises and how that condition injured her is not
precluded, under Virginia law, from reaching a jury on the issue of
negligence simply because she lacks evidence as to why the unsafe
condition resulted in her injury. Rather, the plaintiff’s claim may sur-
vive summary judgment if the evidence would allow a reasonable jury
to conclude that the premises’ owner had actual or constructive notice
of the unsafe condition that caused her injury — i.e., that the condi-
tion posed a foreseeable risk of danger to invitees and the owner had
actual or imputable knowledge of the condition and its danger — and
the jury could conclude that the owner was negligent in addressing
the unsafe condition. See O’Brien v. Everfast, Inc., 491 S.E.2d 712,
714-15 (Va. 1997).
In O’Brien, the Supreme Court of Virginia held that a store could
be held liable for the injuries of a plaintiff on which a bolt of fabric
2As one might expect, Wal-Mart favors "dangerous" in its brief and
appellant favors "unsafe," but at least for our purposes, the cases make
no meaningful distinction between the two. See, e.g., Fobbs v. Webb
Bldg. Ltd. P’ship, 349 S.E.2d 355, 357 (Va. 1986) (concluding that there
was sufficient evidence that a condition was "unsafe, dangerous or haz-
ardous").
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fell (i.e., the how of her injury), even though the plaintiff could not
prove why the bolt fell, because the "dangerous condition" — the bolt
being leaned against a cutting table in violation of the store’s safety
policy — was known to a salesperson on the floor. Id. According to
the O’Brien court, "[t]he absence of evidence as to what caused the
bolt of fabric to fall would not preclude the jury from finding that
O’Brien’s injury resulted from [the store’s] negligence" because
"[t]hese facts were sufficient to permit the jury to find, without resort-
ing to speculation or conjecture, that the salesperson knew of the
potential danger" (i.e., had notice of the unsafe condition) and "to
determine whether the defendant was negligent in permitting the dan-
gerous condition to exist." Id. (1997); see also Holcombe v. Nations-
Banc Fin. Servs. Corp., 450 S.E.2d 158, 160 (Va. 1994) (holding that
evidence was sufficient to go to jury on whether the danger posed by
the allegedly unsafe condition — the manner in which certain parti-
tions were stored — was foreseeable even absent proof of why the
partitions fell on the plaintiff).
As an initial matter, it is not entirely clear from the evidence
whether the mirror display was an unsafe condition at all. But in light
of the disarray in which Hodge found the display area when she
arrived, the unexplained fall of the mirrors, and other circumstantial
evidence in the record, we will assume without deciding that Hodge’s
injury resulted from an unsafe condition posed by the mirror display.3
However, there is no evidence that Wal-Mart actually knew of the
condition of the mirror display immediately preceding the accident,
and thus Wal-Mart lacked actual notice of the unsafe condition that
injured her. Therefore, Hodge must show Wal-Mart’s constructive
notice of the unsafe condition: i.e., that "an ordinarily prudent person,
given the facts and circumstances [Wal-Mart] knew or should have
known, [would] have foreseen the risk of danger resulting from such
3The presence of some suggestion as to why the condition of the mir-
ror display presented a danger helps to distinguish, in this respect, older
cases such as Williamsburg Shop, Inc. v. Weeks, 110 S.E.2d 189 (Va.
1959), where the plaintiff claimed, inter alia, that a slippery stairway or
landing caused her to fall but "failed to produce any evidence, direct or
circumstantial, that the stairway or landing where she fell was wet or
slippery." Fobbs, 349 S.E.2d at 357 (summarizing and distinguishing
Williamsburg Shop, 110 S.E.2d at 192).
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circumstances . . . ." Memco Stores, Inc. v. Yeatman, 348 S.E.2d 228,
231 (Va. 1986).
B.
As to the issue of Wal-Mart’s constructive notice, the district
court’s primary support for its conclusion that Hodge failed to estab-
lish the foreseeability of the danger posed by any unsafe condition
within the mirror display was the lack of evidence that Wal-Mart’s
display of the mirrors was in violation of store policy, which distin-
guished these facts from those of similar Virginia cases. See, e.g.,
O’Brien, 491 S.E.2d 712, 714. While compliance with store policies
(safety or otherwise) may be sufficient in some cases to resolve the
question of the store owner’s constructive notice of an unsafe condi-
tion, we do not think that this has the dispositive weight here that the
district court’s brief analysis might suggest. In other words, Wal-
Mart’s compliance with store policies (safety or otherwise) would not
preclude constructive notice of the unsafe condition of the mirror dis-
play if other evidence suggests that the condition’s danger was fore-
seeable.
That said, the evidence still would not allow a reasonable jury to
conclude that Hodge carried her burden on this point. Despite Wal-
Mart’s admitted lack of actual notice of a specific unsafe condition,
Hodge maintains that Wal-Mart had "actual and constructive notice
of the risk of falling merchandise and of the recurrent disarray of the
mirrors themselves." Br. of Appellant at 10-11. As evidence, Hodge
points to, inter alia, the litany of incidents of falling merchandise that
occur in Wal-Mart stores generally, see id. (quoting from Doe v. Wal-
Mart Stores, Inc., 558 S.E.2d 663, 679-80 (W. Va. 2001), which dis-
cusses evidence that over 18,000 such incidents occurred during one
five-year period), and the steps that Wal-Mart took (as well as the rea-
sons for doing so) to monitor the mirror display in that store.
But such evidence is insufficient proof of actual or constructive
notice under Virginia law; it goes only to whether the unsafe condi-
tion that produced her injury was foreseeable in general, not whether
Wal-Mart had actual or constructive notice of the specific unsafe con-
dition that injured her. Indeed, the Supreme Court of Virginia has
squarely rejected the so-called "method theory," under which proof of
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actual or constructive notice of a specific dangerous condition can be
omitted "if ‘it is reasonably foreseeable that a dangerous condition is
created by, or may arise from, the means used to exhibit commodities
for sale.’" Winn-Dixie Stores, Inc. v. Parker, 396 S.E.2d 649, 651 n.3
(Va. 1990) (quoting Thomason v. Great Atl. & Pac. Tea Co., 413
F.2d 51, 52 (4th Cir. 1969) and declining to "adopt the ‘method-
theory’ embraced by [that] court"). Instead, the constructive notice
inquiry under Virginia law focuses on whether knowledge of a spe-
cific unsafe condition may be imputed, which "may be shown by evi-
dence that the defect was noticeable and had existed for a sufficient
length of time to charge its possessor with notice of its [unsafe] condi-
tion." Grim v. Rahe, Inc., 434 S.E.2d 888, 890 (Va. 1993). "Hence,
if the evidence fails to show when a defect occurred on the premises,
the plaintiff has not made out a prima facie case [of negligence]." Id.
For example, in Parker the plaintiff slipped on a loose snap bean
that had fallen to the floor from a sloping vegetable bin in the Winn-
Dixie grocery store, but the plaintiff lacked evidence of how the bean
("the dangerous condition") got on the floor or whether an employee
had missed the bean when mopping the area only minutes earlier.
Rejecting the plaintiff’s claim that evidence "about the concern of
store employees for loose items show[ed] constructive notice on the
part of Winn-Dixie," the court explained:
There is no evidence in this case that Winn-Dixie knew of
the presence of the bean on the floor, nor is there any show-
ing of the length of time it may have been there. It is just
as logical to assume that it was placed on the floor an instant
before Parker struck it as it is to infer that it had been there
long enough that Winn-Dixie should, in the exercise of rea-
sonable care, have known about it.
Id. at 651.
Here, Hodge’s claim must fail for the same reason. Even assuming
that she established that an unsafe condition existed in the display
when she arrived, she failed to provide sufficient evidence of how
much earlier the condition arose, and thus cannot establish that the
condition was in existence for a time sufficiently long for a jury to
conclude that Wal-Mart was negligent in addressing it. The record
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evidence suggests that the unsafe condition existed for less than two
and one-half hours, the approximate time between Chalmers’ last
inspection and the accident. And while there is evidence that the dis-
play could become disordered as quickly as an hour after inspection,
Hodge has insufficient evidence of when, that afternoon, the specific
unsafe condition we have assumed produced her injury developed.4
As was the case in Parker, it is as logical to assume that an unsafe
condition with the mirrors arose in the moments before Hodge entered
the display area as it is to assume that it had been there long enough
that Wal-Mart should have known about it. See also Grim, 434 S.E.2d
at 890 (holding that, where it was unclear for how long an alleged
dangerous condition had existed, the jury was not allowed even to
consider whether a one-day period would have been sufficient for
constructive notice because "there is absolutely no evidence as to
when the [unsafe condition occurred], how it [occurred], no evidence
that the owner knew about it. It could have [occurred] five minutes
[before the injury] or sooner.").
CONCLUSION
For these reasons, the judgment of the district court is affirmed.
AFFIRMED
4We cannot conclude, as Hodge also seems to suggest, that given the
lack of bungee cords or similar restraints, the mirror display was unsafe
even as arranged after Chalmers inspected it — in other words, that the
display was inherently dangerous. For one, there is no record evidence
of falling mirrors in this or any other Wal-Mart store under conditions
similar to what Hodge observed upon arrival, much less when arranged
as Wal-Mart desired. That the shelves from which the mirrors fell may
have been as high as six feet from the ground could not, standing alone,
support a conclusion that the display area was inherently dangerous.
Rather, only through manipulation of the mirrors or shelves by, e.g., cus-
tomers, would the evidence seem possibly to support a conclusion that
an unsafe condition had been created.
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