Barter v. Wal-Mart Stores, Inc.

• Court: Superior Court of Maine
• Decided: December 9, 2014
• Docket: CUMcv-13-363
• Status: Unpublished

Opinion

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STATE OF MAINE SUPERIOR COURT CUMBERLAND, ss CIVIL ACTION Docket No. CV-13-363 ::_;·r.t.,l~E f)F r·,r~/\lt~SE C~urr,~·;-cb;-,ri "·" Cierk's OfRC<'i

DAVID L. BARTER, o:::c 0:) 2014 Plaintiff ORDER ON PLAINTIFF'S v. MOTION FOR DEFAULT JUDGMENT ON LIABILITY WAL-MAT STORES, INC.,

Defendant

Before the court is plaintiff's motion for default judgment on liability.

Plaintiff argues defendant failed to preserve all available surveillance video

of the entire parking lot of defendant's store in Windham, Maine for the day

of the incident, February 11, 2013. Defendant argues it produced the actual

surveillance video and still photos from the video of the area of the parking

lot where plaintiff alleges he fell. Defendant's policy provides that

surveillance video is retained for 30 days only unless there is a reason to

retain the video beyond 30 days. Apparently because there were no other

incidents in other areas of the parking lot on February 11, 2013, surveillance

video for those areas was not retained. (Davis Dep. 42-53.)

Plaintiff learned at the deposition of defendant's representative on

August 22, 2014 that the surveillance video of the remaining areas of the

parking lot had not been retained. Plaintiff filed this motion on November

5, 2014, when the case was on the November-December trial list. Defendant

filed its opposition to the motion on November 10, 2014. Plaintiff filed no

reply.

1 There is no basis for entry of default in this case pursuant either to

Rule 37 or Rule 55. See M.R. Civ. P. 37(b)(2)(C) & 55(b)(2). There was no

spoliation of evidence. See Driggin v. Am. Sec. Alarm Co., 141 F. Supp. 2d

113, 120 (D. Me. 2000) ("The goals of the spoliation doctrine 'are to rectify

any prejudice the non-offending party may have suffered as a result of the

loss of evidence and to deter any future conduct, particularly deliberate

conduct, leading to such loss of evidence."') (quoting Collazo-Santiago v.

Toyota Motor Corp., 149 F.3d 23, 29 (1st Cir. 1998)); see also Testa v. Wal-

Mart Stores, Inc., 144 F.3d 173, 177 (1st Cir. 1998) ("This permissive negative

inference springs from the commonsense notion that a party who destroys a

document (or permits it to be destroyed) when facing litigation, knowing

the document's relevancy to issues in the case, may well do so out of a sense

that the document's contents hurt his position.") (emphasis added)).

The entry is

Plaintiff's Motion for Default Judgment on Liability is DENIED.

Date: December 9, 2014 ancy Mills Justice, Superior C urt

2 JEFFREY EDWARDS ESQ PRETI FLAHERTY BELIVEAU & PACHIOS PO BOX 9546 PORTLAND ME 04112-9546

JOY MCNAUGHTON ESQ LAW OFFICES OF JOHN HORN 130 MIDDLE ST PORTLAND ME 04101