The spoliation mine field strikes again

FLORIDA LAW WEEKLY

VOLUME 51 NUMBER 3

CASES FROM THE WEEK OF JANUARY 23, 2026

COURT REVERSES SLIP AND FALL VERDICT FOR A NEW TRIAL- TRIAL COURT IMPROPERLY IMPOSED A LATE BURDEN SHIFTING SPOLIATION SANCTION AND ALSO ERRED IN EXCLUDING DEFENSE CAUSATION EXPERT UNDER DAUBERT

Walgreens Co. v. Chaux, 51 Fla. L. Weekly D117 (Fla. 3d DCA Jan. 14, 2026):

The plaintiff fell in the checkout lane at a Walgreens. An employee heard the fall and found her on her back and unconscious. The manager called 911, and the plaintiff went to the hospital. The plaintiff suffered a catastrophic brain injury and remained hospitalized for over three months. After a five-day trial, the jury returned a verdict in her favor and awarded $5,547,733 in damages. Walgreens moved for a new trial.

The appeal focused on two errors that, together, the court said denied Walgreens a fair trial; spoliation and jury instructions.

Five days after the fall, plaintiff’s counsel sent a preservation letter asking Walgreens to preserve any surveillance video in or around the premises, including three hours before and after the incident. Counsel also went to the store and asked to see video from a camera above the register, and the manager directed counsel to go through Sedgwick. Sedgwick responded that the area was not captured on video and took the position that the plaintiff had a seizure, not a slip, thereby absolving Walgreens of liability.

The amended complaint alleged she slipped due to an inherently slippery floor and or foreign substance, and stated that if Walgreens failed to preserve and produce CCTV footage she would seek a negative inference.

Before trial, the court held an evidentiary hearing and found Walgreens had a duty to preserve the CCTV video, and that its failure to do so hindered the plaintiff’s ability to establish a prima facie case. The trial court indicated some adverse inference instruction would be appropriate.

On the first day of trial, the parties argued over the standard instructions: the plaintiff wanted the burden shifting presumption instruction (301.11(b)) and Walgreens wanted the adverse inference instruction (301.11(a)). The trial judge initially said the inference style instruction was more appropriate and even stated on the record he was not giving a presumption that the plaintiff had “proven” her case.

But after Walgreens rested, the trial court gave an instruction that effectively did both. It told the jury there was a presumption that the missing video would have been unfavorable to Walgreens and then went further and told the jury it should find the plaintiff established actual or constructive notice of a foreign substance, unless it found that Walgreens proved otherwise by the greater weight of the evidence.

The appellate court held that this late, burden shifting sanction contradicted the court’s prior pronouncements and was imposed without proper notice, leaving Walgreens to defend the case not knowing it would bear the burden to disprove notice, which created a due process problem. The court also noted that the instruction functioned like a directed verdict on an element of the cause of action, thereby depriving Walgreens of a fair trial.

On the other issue, Walgreens had an internal medicine physician, who reviewed medical records and other materials and concluded the plaintiff was likely experiencing an alcohol withdrawal seizure that caused her to lose consciousness and fall backward. The trial court excluded the testimony as “pure speculation” and not supported under Daubert.

The appellate court reversed, explaining that Daubert gatekeeping is about methodology, and that vigorous cross examination and contrary evidence are the traditional means of attacking shaky but admissible evidence.

On the record described in the opinion, the expert relied on a substantial body of medical records and context from the day of the incident and historical records, including hospital decisions like ordering an alcohol level and administering thiamine, plus lab values and history information, and he also discussed alternative explanations like low magnesium, low blood pressure, or flu symptoms. The court held the opinion was based on sufficient facts and reliable methods, not inference stacking, and therefore it was an abuse of discretion for the trial judge to exclude the opinion.

DATA BREACH CLASS ACTION AGAINST BROWARD HEALTH DISMISSED BASED ON SOVEREIGN IMMUNITY; COURT HOLDS ECONOMIC PRIVACY DAMAGES DO NOT FIT SECTION 768.28 AND THE PRIVACY NOTICES DO NOT CREATE AN EXPRESS WRITTEN CONTRACT

Beck v. North Broward Hospital District, 51 Fla. L. Weekly D102 (Fla. 4th DCA Jan. 14, 2026):

This is a data breach class action where former patients sued Broward Health after an October 2021 incident exposed private information, including personal identification, insurance, and medical information. The plaintiffs first sued in negligence, alleging Broward Health failed to use due care in collecting and storing the data, and claiming harms like loss of control and “marketable value” of information, diminished value, out of pocket protection expenses, and even actual identity theft.

The other claim was for, breach of contract, arguing that patient-facing documents like the Patient’s Bill of Rights, the Notice of Privacy Practices, the medical staff bylaws, and the code of conduct created an express contract.

The trial court dismissed the case with prejudice, and the Fourth affirmed.

As for the negligence claim, the court ruled that section 768.28 waives immunity only for tort money damages for injury or loss of property, personal injury, or death. The plaintiffs’ damages were framed as economic harms tied to privacy and the value of information; not actual damage to tangible property, and the court held that did not fit within the statutory waiver.

As to the contract claim, while Florida does not have an across-the-board contract waiver the way it does for torts, the court found that the privacy and patient rights documents were informational notices required by statute, intended to educate patients and describe statutory duties, and did not create binding contractual obligations.

The Fourth District distinguished the FSC’s Rojas decision, because it involved a specific written financial liability agreement with unmistakably contractual language, and nothing comparable existed in this case. Bottom line, there was no express written contract, no contract waiver; and the damages pled fall outside the limited tort waiver, necessitating affirmance.

OPEN AND OBVIOUS CONDITIONS MAY DEFEAT THE DUTY TO WARN, BUT DO NOT AUTOMATICALLY WIPE OUT THE SEPARATE DUTY TO MAINTAIN PREMISES IN A REASONABLY SAFE CONDITION

McWhorter v. Event Services America, Inc., 51 Fla. L. Weekly D104 (Fla. 2d DCA Jan. 14, 2026):

As she left a Tampa Bay Rays game in July 2021, the plaintiff walked through the entrance rotunda at Tropicana Field and tripped over a metal battery case, about the size of a shoebox that had been left in the walkway by a security guard employed by Event Services. The sequence was captured on video.

The court described the rotunda as well lit, with a green floor painted like a miniature baseball diamond, and only a few people in view in the recording. The guard carried the case, set it down on the floor, walked a few feet to pick up what looked like trash, and then turned away, leaving the case there. A group of four people crossed that same area without tripping, but the plaintiff, walking a few feet behind them, caught her toe on the case and went down in a forward tumbling fall. Seconds later, another employee picked up the case and moved it, and the guard came back while she was still on the ground. In her deposition, the plaintiff testified she never saw what she tripped over, admitted the case was not concealed, and said she had been looking to her right before she fell; she also testified the guard apologized for leaving it on the floor.

The trial court entered summary judgment for the defendant, largely based on an open and obvious theory: no duty to warn, and no dangerous condition.

The court affirmed in part and reversed in part, agreeing that the condition was open and obvious, entitling the defendant to summary judgment on the duty to warn. However, it reversed the summary judgment on the separate duty to maintain the premises in a reasonably safe condition.

The court reminded us of the familiar premises liability dichotomy: even when a hazard is open and obvious, that may discharge the duty to warn, but it does not automatically discharge the duty to maintain if the landowner or person or entity in control of the premises, should anticipate harm could occur anyway.

Here, an employee left a substantial object in a stadium rotunda where crowds ordinarily move through, and the plaintiff tripped less than a minute after it was placed. On those facts, the court concluded that a reasonable jury could find it was foreseeable that a patron would still trip over it, despite the obviousness, and thus there was a triable issue on whether Event Services breached its duty to maintain the area in a reasonably safe condition.