Not a Lexis Advance subscriber? Try it out for free.

Pena v. Bi-Lo Holdings, LLC

Court of Appeal of Florida, Third District

March 4, 2020, Opinion Filed

No. 3D19-0581



Hortensia Pena appeals from a final summary judgment rendered in favor of Bi-Lo Holdings, LLC and Winn-Dixie Stores, Inc. d/b/a Fresco Y Mas (collectively referred to as "Winn-Dixie") in her negligence action below. On appeal, Pena contends the trial court reversibly erred in denying her motion for an adverse inference jury instruction following the purported spoliation of evidence, and that, such inference would have precluded the entry of summary judgment. For the reasons set forth below, we discern no abuse of discretion and affirm.


On October 21, 2017, while shopping at a local supermarket with her future sister-in-law, Eduvina Rego, Pena slipped and fell, striking her head on the floor. Rego rushed to her side and observed uncooked rice strewn beneath Pena, ostensibly sourced from a perforated bag perched on a temporary display. She snapped several photographs, one of [*2]  which purportedly depicted a store employee sweeping up grains of rice. Pena was transported by ambulance to a nearby hospital.

Mere days later, Pena furnished Winn-Dixie with a written request to preserve all video surveillance recorded within the store in the hour surrounding the incident. In early 2018, she filed suit in the lower tribunal, and the parties engaged in discovery.

Ensuing evidentiary exchanges revealed the closed-circuit recording system within the store failed to capture the area in which the mishap occurred.1 Winn-Dixie either discarded or misplaced the errant bag of rice and did not maintain hourly inspection logs. Further, the identity of the claimed employee depicted in the photograph could not be ascertained.

In late-2018, Winn-Dixie moved for summary judgment, alleging that, as the rice was pristine, admittedly devoid of discoloration, there was no indication it had been present on the floor for a sufficient length of time prior to the fall to impute actual or constructive notice of a dangerous condition. In response, Pena filed a motion seeking to allow the trier of fact to draw an adverse inference. In support thereof, Pena contended that, by failing to direct [*3]  its surveillance at the scene of the fall, preserve the sack of rice, maintain inspection logs, and identify the unknown employee, Winn-Dixie thwarted her ability to demonstrate notice.

Read The Full CaseNot a Lexis Advance subscriber? Try it out for free.

Full case includes Shepard's, Headnotes, Legal Analytics from Lex Machina, and more.

2020 Fla. App. LEXIS 2683 *; 45 Fla. L. Weekly D 506; 2020 WL 1035692

Hortensia Pena, Appellant, vs. Bi-Lo Holdings, LLC, etc., et al., Appellees.


Prior History:  [*1] An appeal from the Circuit Court for Miami-Dade County, Rodolfo A. Ruiz, Judge. Lower Tribunal No. 18-1667.


adverse inference, spoliation, discovery, notice, rice, summary judgment, photograph, bag

Civil Procedure, Appeals, Standards of Review, Abuse of Discretion, Evidence, Inferences & Presumptions, Inferences, Trials, Jury Trials, Jury Instructions, De Novo Review, Judgments, Summary Judgment, Entitlement as Matter of Law, Summary Judgment Review, Standards of Review, Relevance, Preservation of Relevant Evidence, Spoliation, Sanctions, Province of Court & Jury, Burdens of Proof, Discovery & Disclosure, Discovery, Preservation of Relevant Evidence