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Martino v. Wal-Mart Stores7/7/2005
We have for review the decision in Martino v. Wal-Mart Stores, Inc., 835 So. 2d 1251 (Fla. 4th DCA 2003), which certified conflict with the decision in Bondu v. Gurvich, 473 So. 2d 1307 (Fla. 3d DCA 1984). We have jurisdiction. See art. V, ยง 3(b)(4), Fla. Const.
FACTS
In March 1997, petitioner Ronna Martino (Martino) went to a Wal-Mart store in Royal Palm Beach. In addition to other items, Martino placed two forty-pound bags of salt in her shopping cart. When checking out, Martino placed all of her items except the bags of salt on the counter for the cashier. According to Martino's testimony, the cashier then asked Martino to lift up the bags of salt so that the cashier could scan the price code. Martino attempted to comply with the cashier's request, placing one bag of salt on the top of the shopping cart where a child would sit. As she placed the salt on top of the shopping cart, the cart collapsed, and Martino injured her arm. Martino then completed the sale and went home.
Martino testified that once she returned home, she called the Wal-Mart store and asked to speak to the manager. Her call was answered by the assistant manager, who advised her to go to the hospital to have her arm checked and then return to Wal-Mart to fill out an incident report. Martino testified that during the conversation with Wal-Mart's assistant manager, Martino informed him where he could find the shopping cart in the parking lot.
After her visit to the hospital, Martino returned to Wal-Mart and filled out an incident report. Martino testified that while she was at the store, she showed the assistant manager where the shopping cart was in the parking lot and requested that he obtain the videotape of the incident from the surveillance camera inside the store.
Thereafter, on August 26, 1999, Martino brought an action against Wal-Mart, alleging that Wal-Mart was negligent in its inspection and maintenance of the store's shopping carts (the "negligent maintenance" theory) and in failing to properly train store employees regarding appropriate procedures for scanning and customer handling of heavy items (the "negligent mode of operation" theory). Martino's husband also asserted a claim for loss of consortium.
During discovery, Martino requested the shopping cart and a copy of the video surveillance tape. When Wal-Mart could not produce either item, Martino filed a second amended complaint, alleging a separate claim for spoliation of evidence. Wal-Mart thereafter filed a motion to dismiss Martino's claim for spoliation of evidence, asserting that Martino's complaint failed to state a cause of action because Martino failed to allege ultimate facts indicating that Wal-Mart had a legal or contractual duty to preserve the evidence. The trial court granted Wal-Mart's motion to dismiss Martino's spoliation claim on the basis that Wal-Mart had no contractual or statutory duty to preserve the evidence.
The case then proceeded to trial on Martino's negligence claims. Prior to the presentation of evidence, Martino argued that she was entitled to a jury instruction on the inference of negligence because of Wal-Mart's failure to preserve the evidence. The trial court rejected Martino's argument and ruled that Martino was not entitled to an inference of negligence based on the spoliation of evidence. The trial court granted Wal-Mart's motion for directed verdict.
Martino appealed the trial court's decision to the Fourth District Court of Appeal, arguing that (1) the trial court erred in granting Wal-Mart's motion to dismiss Martino's spoliation-of-evidence claim; (2) the trial court erred in granting a directed verdict in Martino's negligent mainten
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