Schindler Elevator Corporation v. Darren Ceasar

Supreme Court of Texas

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No. 22-0030

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Schindler Elevator Corporation,

Petitioner,

v.

Darren Ceasar,

Respondent

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On Petition for Review from the

Court of Appeals for the Ninth District of Texas

═══════════════════════════════════════

Argued February 1, 2023

CHIEF JUSTICE HECHT delivered the opinion of the Court.

Plaintiff Darren Ceasar alleges he was injured in a hotel elevator

that ascended rapidly, then came to an abrupt stop. He sued the

building’s elevator-maintenance contractor, Schindler Elevator, and the

jury found for Ceasar. The main issue in this appeal is whether the trial

court abused its discretion by including in the jury charge an instruction

on res ipsa loquitur. We conclude that it did. We hold that Ceasar

presented no evidence to support the doctrine’s first element—the type

of accident is such that it would not ordinarily occur absent negligence—

because the relevant testimony of Ceasar’s elevator expert is conclusory.

We further hold that the instruction’s submission was harmful in this

case and address Schindler’s remaining challenges to the judgment.

We reverse the part of the court of appeals’ judgment relating to

the trial court’s judgment on the jury’s verdict for Ceasar, and we

remand to the trial court for a new trial. We affirm the part of the court

of appeals’ judgment relating to discovery sanctions that the trial court

imposed on Schindler.

I

Darren Ceasar, a barber from Louisiana, checked into

Beaumont’s MCM Eleganté Hotel for a vacation, went up to his seventh-

floor room briefly, then left the hotel to get a pizza. 1 Upon returning,

Ceasar took the elevator back up to his room.

As the elevator ascended, it started speeding up, went past the

seventh floor to the ninth floor, came to an abrupt stop, and started

shaking. The abrupt stop jarred Ceasar’s body, but the events transpired

so quickly that he is unsure whether he fell down or collided with the

side of the elevator. Ceasar pushed buttons to open the elevator doors,

but they remained closed. He also activated the elevator’s alarm, but the

alarm was not loud enough and failed to summon help. After a few

minutes, Ceasar called 911 from his cell phone. Firefighters arrived

within half an hour and extracted him.

After settling in to a new room on the main floor, Ceasar started

to feel pain in his neck and back. He drove to a hospital in nearby Port

1 We take Ceasar’s trial testimony as true, as we must.

2

Arthur, where he was examined and then prescribed pain medication. A

few months after the incident, he sought care from a neurosurgeon in

Louisiana, who eventually performed lumbar-disc surgery on Ceasar.

He was also treated by a psychiatrist for PTSD.

Ceasar sued the Eleganté and its elevator-maintenance

contractor, Schindler. After the trial court granted a final summary

judgment for the Eleganté, Ceasar’s claims against Schindler proceeded

to a week-long jury trial. Schindler’s counsel acknowledged in opening

argument that “something happened” when the elevator “didn’t stop at

7. It stopped at 9.” But Schindler challenged whether the incident was

really as dramatic as Ceasar portrayed it to be. The other main issues

at trial were whether the incident was caused by Schindler’s negligent

maintenance of the elevator and whether Ceasar’s injuries predated the

incident.

In a 10–2 verdict, the jury answered “yes” to the question whether

Schindler’s negligence proximately caused the elevator incident and

awarded Ceasar more than $800,000 in actual damages. 2 Schindler

appealed, raising several discrete issues that challenged the jury charge,

the court’s admission and exclusion of evidence, its management of

discovery, and its imposition of discovery sanctions on Schindler. The

court of appeals affirmed. 3 We granted Schindler’s petition for review.

2 A question on gross negligence was also submitted. The jury answered

that question “no”.

3 666 S.W.3d 25 (Tex. App.—Beaumont 2021).

3

II

We first address Schindler’s challenge to the court’s submission

of a jury instruction on res ipsa loquitur —Latin for “the thing speaks

for itself”. Over Schindler’s objection, the instructions in the jury charge

included this paragraph:

You are instructed that you may infer negligence by a party

but are not compelled to do so, if you find that the character

of the accident is such that it would ordinarily not happen

in the absence of negligence and if you find that the

instrumentality causing the accident was under the

management and control of the party at the time the

negligence, if any, causing the accident probably occurred.

We have approved this exact language for a res ipsa instruction to be

given in appropriate cases. 4 But Schindler argues that this is not an

appropriate case because the evidence does not support the submission

of a res ipsa instruction.

A

Res ipsa is an evidentiary doctrine that “relieve[s] the plaintiff of

the burden of proving a specific act of negligence by the defendant when

it is impossible for the plaintiff to determine the sequence of events, or

when the defendant has superior knowledge or means of information to

determine the cause of the accident.” 5 The doctrine applies only rarely,

when the way in which an accident occurred furnishes circumstantial

evidence of the defendant’s negligence. 6 The classic example of a case

4 Mobil Chem. Co. v. Bell, 517 S.W.2d 245, 257 (Tex. 1974).

5 Jones v. Tarrant Util. Co., 638 S.W.2d 862, 865 (Tex. 1982).

6 See Bell, 517 S.W.2d at 250 (“[M]eaning ‘the thing speaks for

itself,’ . . . [res ipsa] has come to signify that in certain limited types of cases[,]

4

that “invite[s] res ipsa loquitur treatment” is when a foreign object is left

in a patient after surgery. 7

Our caselaw has articulated two mandatory elements for the

doctrine’s application:

(1) the character of the accident must be such that it would not

ordinarily occur in the absence of negligence; and

(2) the instrumentality causing the injury must be shown to have

been under the management and control of the defendant. 8

To request a res ipsa instruction, “the plaintiff must produce evidence

from which the jury can conclude, by a preponderance of the evidence,

that both the ‘type of accident’ and ‘control’ factors are present.” 9 In

other words, the plaintiff must introduce sufficient evidence to “survive

[a] no-evidence . . . challenge[]” on the question whether the

circumstances of the accident alone provide sufficient evidence of

negligence. 10 Contrarily, a defendant’s challenge to a res ipsa

the circumstances surrounding an accident constitute sufficient circumstantial

evidence of the defendant’s negligence to support such a fact finding.”); see also

Porterfield v. Brinegar, 719 S.W.2d 558, 559 (Tex. 1986) (“Res ipsa loquitur

means simply that the nature of the occurrence itself furnishes circumstantial

evidence of negligence.”); id. (“Although an accident is no evidence of

negligence, the character of the accident, and the circumstances and proof

attending it, may reasonably lead to the belief that without negligence the

accident would not have occurred.”); Marathon Oil Co. v. Sterner, 632 S.W.2d

571, 573 (Tex. 1982) (characterizing the cases to which res ipsa applies as

“limited”).

7 Walters v. Cleveland Reg’l Med. Ctr., 307 S.W.3d 292, 297 (Tex. 2010).

See, e.g., Haddock v. Arnspiger, 793 S.W.2d 948, 950 (Tex. 1990) (citing

8

Bell, 517 S.W.2d at 251).

9 Bell, 517 S.W.2d at 252.

10 Id. at 251.

5

instruction is “essentially [a] ‘no evidence’ point[]”. 11

Evidentiary support for the “type of accident” and “control”

factors is the minimum requirement for a res ipsa instruction and will

not entitle the plaintiff to an instruction in every case. 12 “[I]n any Res

ipsa case, the particular facts surrounding the event are extremely

important.” 13 That means that determining the applicability of res ipsa

is a case-specific exercise. In two cases involving injuries to a worker

caused by exposure to gas or chemicals at the defendant’s plant, we

concluded that res ipsa applied in one 14 but not the other 15 because of

differences in the record evidence. Similarly, though we have previously

affirmed a lower court’s application of res ipsa in a case involving a free-

falling elevator, 16 we have also held “that the mere occurrence of an

unintended acceleration incident [involving a car] is no evidence that a

11 Id. at 253.

12 The American Law Institute has explained:

A risk of error is involved in permitting such an inference . . . .

But there is a risk of error whenever circumstantial evidence is

relied on in reaching findings of negligence. To be sure, res ipsa

loquitur does produce an element of discomfort, inasmuch as the

defendant can be found negligent without any evidence as to the

nature or circumstances of the defendant’s actual conduct. This

discomfort leads to some circumspection in the application of res

ipsa loquitur.

RESTATEMENT (THIRD) OF TORTS: LIABILITY FOR PHYS. & EMOT. HARM § 17

cmt. a (AM. L. INST. 2010).

13 Bell, 517 S.W.2d at 248.

14 Id. at 253.

15 Sterner, 632 S.W.2d at 573-574.

16 Bond v. Otis Elevator Co., 388 S.W.2d 681, 684 (Tex. 1965).

6

vehicle is defective.” 17 A res ipsa instruction should not be given when it

is used to suggest that liability for an accident can be imposed without

negligence.

With that background we turn to the evidence in this case.

B

Schindler challenges the evidence to support each element of res

ipsa. Because this is “essentially a no evidence point”, we apply the same

standard of review and look to the record to see if it contains “more than

a mere scintilla” of evidence to support each one. 18 “The record contains

more than a mere scintilla of evidence when the evidence rises to a level

that would enable reasonable and fair-minded people to differ in their

conclusions. Conversely, the record contains less than a scintilla when

the evidence offered to prove a vital fact’s existence is ‘so weak as to do

no more than create a mere surmise or suspicion.’” 19 We view the

evidence in the light most favorable to Ceasar, “crediting favorable

evidence if reasonable jurors could, and disregarding contrary evidence

unless reasonable jurors could not.” 20 Because we conclude that the

evidence offered to support the first element of res ipsa is legally

insufficient, we need not address the second element.

The first element is that the character of the accident must be

17 Nissan Motor Co. v. Armstrong, 145 S.W.3d 131, 137 (Tex. 2004).

18 See, e.g., Gunn v. McCoy, 554 S.W.3d 645, 658 (Tex. 2018).

19 Id. at 658 (quoting King Ranch, Inc. v. Chapman, 118 S.W.3d 742,

751 (Tex. 2003)).

20 City of Keller v. Wilson, 168 S.W.3d 802, 807 (Tex. 2005).

7

such that it would not normally occur in the absence of negligence. 21

Ceasar relies on the testimony of his elevator expert, J.R. Freeman, to

satisfy his burden of proof on this element. 22 Freeman testified three

times on direct or redirect examination that an elevator’s behaving the

way Ceasar described ordinarily occurs due to negligence in the

elevator’s maintenance. But in each instance, his testimony was

conclusory.

Conclusory testimony “is considered no evidence.” 23 “An expert’s

testimony is conclusory when the expert asserts a conclusion with no

basis”; 24 when “‘the basis offered provides no support’ for the opinion”; 25

or when the expert “offers only his word that the bases offered to support

his opinion actually exist or support his opinion.” 26 An expert “must link

his conclusions to the facts” and “explain[] the basis of his assertions.” 27

“Asking the jury to take the expert’s word for it because of his status as

21 Haddock, 793 S.W.2d at 950 (citing Bell, 517 S.W.2d at 251).

Expert testimony is not always required to prove this element, but it

22

“is clearly admissible and may be necessary to the plaintiff’s case.” Bell, 517

S.W.2d at 252.

Bombardier Aerospace Corp. v. SPEP Aircraft Holdings, LLC, 572

23

S.W.3d 213, 222 (Tex. 2019) (citing City of San Antonio v. Pollock, 284 S.W.3d

809, 818 (Tex. 2009)).

24 Id. at 223 (citing Pollock, 284 S.W.3d at 818).

Pike v. Tex. EMC Mgmt., LLC, 610 S.W.3d 763, 787 (Tex. 2020)

25

(quoting Pollock, 284 S.W.3d at 818).

26 Id. at 790 (quoting Windrum v. Kareh, 581 S.W.3d 761, 769 (Tex.

2019)).

Bombardier Aerospace Corp., 572 S.W.3d at 223 (citing Earle v.

27

Ratliff, 998 S.W.2d 882, 890 (Tex. 1999)).

8

an expert will not suffice.” 28

Ceasar’s counsel first asked Freeman on direct examination

whether it is “normal operation for a properly functioning elevator to go

to the wrong floor and even above the top of the top floor”. Freeman

responded, simply: “No, it’s not.” Later in the same examination, counsel

asked Freeman to opine “[a]s an elevator expert” whether “the type of

accident that happened here normally occur[s] when maintenance is

being done properly”. Freeman responded, “[n]o, it wouldn’t” and then

added that only two to three “callouts” (service calls) per year are normal

for a properly maintained elevator.

On cross-examination, Schindler’s counsel elicited from Freeman

other possible explanations for the incident Ceasar described.

Q. Okay. Now, there’s lots of reasons that an elevator can

have a harder than normal stop. Would you agree?

A. Yes.

Q. Give me some examples.

A. A clip in a door lock that you mentioned earlier.

Q. Yes, sir.

A. A run up on a final limit.

Q. Okay.

A. A stop switch being engaged.

Q. By a passenger inadvertently or otherwise?

A. Or key -- yes.

Q. So, there’s a lot of ways an elevator can stop?

A. That is correct, sir.

28 Id. (citing Pollock, 284 S.W.3d at 816).

9

Later, Schindler’s counsel asked whether “elevators [can] get stuck

without anybody being negligent”. Freeman acknowledged that, “[y]es,

that can happen.”

Ceasar’s counsel tried to rehabilitate Freeman’s testimony on

redirect examination by asking whether “[a]n abrupt stop like the one

that Mr. Ceasar experienced . . . happen[s] when elevators are properly

maintained”. Freeman responded, “[n]o, it doesn’t”—but again gave no

further explanation.

Freeman thus testified three times that a properly maintained

elevator would not go to the wrong floor or stop abruptly, while also

agreeing with defense counsel’s statement that “there’s lots of reasons”

why an elevator may make a “harder than normal stop.” He never

reconciled these statements or explained the basis for his testimony on

direct and redirect examination other than to say that only two to three

callouts per year are typical for a properly maintained elevator. Even if

it is true that a properly maintained elevator malfunctions only two to

three times per year, it does not follow that a fourth or subsequent

malfunction must be due to improper maintenance.

To satisfy the first element of res ipsa, Ceasar was required to do

more than just “[a]sk[] the jury to take [Freeman’s] word for it because

of his status as an expert”. 29 Ceasar was required to elicit from Freeman

the basis for his assertions that properly maintained elevators

ordinarily do not malfunction, especially in light of Freeman’s own

concessions on cross-examination that negligent maintenance is not the

29 Id.

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only potential cause of an abrupt stop. Because the only evidence Ceasar

offered to support the first element of res ipsa is conclusory testimony,

there is no evidence to support a finding that an elevator ordinarily does

not malfunction in the way Ceasar alleges in the absence of negligence,

and the trial court erred by submitting the instruction.

C

The court of appeals declined to address the merits of Schindler’s

challenge to the res ipsa instruction because it concluded that Schindler

had failed to establish that the instruction “probably caused the

rendition of an improper judgment.” 30 The court pointed out that the

charge included a separate instruction on circumstantial evidence 31 and

reasoned that “[b]ased on the evidence presented at trial, the jury could

have decided that Schindler was negligent from either the direct or

circumstantial evidence in the case.” 32 That is, “[t]he jury could have

believed the testimony provided by the Plaintiff’s expert that Schindler’s

inadequate or improper maintenance and repair to the control board

caused the accident even without relying on the res ipsa loquitur

30 666 S.W.3d at 61; see TEX. R. APP. P. 44.1(a)(1), 61.1(a).

31 This instruction states:

The term “circumstantial evidence” means a fact may be

established by direct evidence or by circumstantial evidence or

both. A fact is established by direct evidence when proved by

documentary evidence or by witnesses who saw the act done or

heard the words spoken. A fact is established by circumstantial

evidence when it may be fairly and reasonably inferred from

other facts proved.

32 666 S.W.3d at 61.

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instruction.” 33 We disagree that the inclusion of the res ipsa instruction

in the charge was harmless.

Ceasar presented two theories of negligence to the jury. The first

was res ipsa, which, if proper, would have enabled the jury to infer

negligence purely from the way that the accident happened. The second

theory, which was also presented through the testimony of expert

Freeman, was that Schindler performed negligent maintenance on a

component called the SDI board, which controls the elevator’s position

and velocity. Schindler’s service-call records reflected that the SDI board

for the elevator had malfunctioned several times in the months leading

up to Ceasar’s accident, that Schindler had replaced the board ten days

before the accident, that Schindler had adjusted the board again only

two days before the accident, and that the board was “not

communicating” on some additional occasions in the first few months

after the accident. Freeman testified that this failure rate was not

typical for an SDI board. He opined, based on this service history, that

Schindler “couldn’t figure out what was wrong with [the board] and just

kept patching it or putting a Band-Aid on it and trying things.”

“Charge error is generally considered harmful if it relates to a

contested, critical issue.” 34 Both of Ceasar’s negligence theories were

33 Id.

34 Thota v. Young, 366 S.W.3d 678, 687 (Tex. 2012) (quoting Columbia

Rio Grande Healthcare, L.P. v. Hawley, 284 S.W.3d 851, 856 (Tex. 2009)); see

also Quantum Chem. Corp. v. Toennies, 47 S.W.3d 473, 480 (Tex. 2001) (“An

improper instruction is especially likely to cause an unfair trial when the trial

is contested and the evidence sharply conflicting . . . .”).

12

hotly contested by Schindler, and the jury returned a 10–2 verdict. 35

Ceasar’s res ipsa theory was also critical to his case. In closing

argument, Ceasar’s counsel told the jury that res ipsa lowers Ceasar’s

burden of proof. 36 Counsel said that the case involves “a little bit of

unique law” because Ceasar “[doesn’t] have to prove exactly how [the

elevator accident] happened.” Counsel directed the jury to the res ipsa

instruction, which he characterized as setting forth “a little bit lighter”

standard than negligence. Counsel then stated:

All we have to prove in here is that, hey, an elevator doesn’t

go up past the floor it’s supposed to stop on and come to an

abrupt stop unless someone neglected -- there was

negligence involved, whatever it was.

Finally, the presence of the circumstantial-evidence instruction

cannot render the res ipsa instruction harmless. The circumstantial-

evidence instruction permits the jury to find any fact by making fair and

reasonable inferences from evidence presented. 37 But the res ipsa

instruction permits the jury to find negligence when there is no evidence

that the defendant breached a duty of reasonable care, only evidence

that the accident would not ordinarily have happened the way it did

absent negligence. The instructions are not the same.

We hold that the improper submission of Ceasar’s res ipsa theory

35See In re Est. of Poe, 648 S.W.3d 277, 292 (Tex. 2022) (holding that an

erroneously submitted jury question was harmful error and noting that

evidence related to the question was hotly contested and that the jury returned

a 10–2 verdict).

See Glenn v. Leal, 596 S.W.3d 769, 772 (Tex. 2020) (stating that the

36

standard of negligence a jury is asked to apply is a critical issue).

37 See supra note 31.

13

probably caused the rendition of an improper verdict. Accordingly, we

reverse the court of appeals’ judgment and remand for a new trial.

III

We briefly address Schindler’s remaining arguments.

A

Schindler complains about the trial court’s ordering Schindler to

produce documents during trial and its imposition of a $25,000 sanction

on Schindler (not Schindler’s counsel) for failing to produce the

documents during pretrial discovery. A letter ruling by the trial court

provides background and explains the reason for the court’s decision.

According to the court, Ceasar specifically requested in discovery

Schindler’s policy or procedure manuals for servicing elevators as well

as its work orders, tickets, and service requests for the elevators at the

Eleganté. Schindler failed to identify, disclose, or produce a policy

manual and certain work orders that were responsive to the requests.

The existence of the missing documents came to light during the

deposition of Schindler’s corporate representative, James Hoover. After

the deposition, Ceasar’s counsel requested the missing documents from

defense counsel by email. Several months later, Schindler produced

some, but not all, of the work orders, while maintaining that it did not

have any policy manuals responsive to the request.

At the pretrial conference, the court admonished both sides to

make sure that all relevant evidence had been tendered to opposing

counsel before the commencement of trial. Nonetheless, it emerged

during Hoover’s trial testimony that a policy manual does, in fact, exist

and that there are additional relevant work orders that were never

14

produced during discovery. Defense counsel eventually obtained those

items from Schindler and turned them over to Ceasar.

The court determined that the fault lay with Schindler, not

Schindler’s counsel. The court found that counsel had timely forwarded

the pretrial discovery requests to Schindler, that counsel had reasonably

relied on the representations made to him by Schindler, and that counsel

had learned of the missing documents’ existence during trial.

The court concluded that Ceasar had not waived its request for

sanctions because the existence of the missing documents was not

established until mid-trial. The court further concluded that Schindler

violated Texas Rule of Civil Procedure 193.1 38 by failing to supplement

its discovery responses after Ceasar’s post-deposition email and by

failing to inform its counsel of the documents’ existence. The court also

found that Schindler had several opportunities to remedy the

deficiencies in its earlier discovery responses.

Though Ceasar requested sanctions in the amount of $100,000,

the court found that $25,000 was appropriate. The court explained that

it was not imposing a greater amount “because of the commendable

efforts by [Schindler’s] attorney . . . to remedy the discovery violation

mid-trial.” The court further found “that a lesser sanction would have

been ineffective given the circumstances of the violation, the volume of

litigation in which Schindler participates across various jurisdictions,

and the amount of the sanction in comparison with the overall cost to

defend the underlying litigation.”

38 See TEX. R. CIV. P. 193.1 (requiring a party to make “a complete

response” to written discovery requests).

15

Schindler contests the discovery and sanctions orders on several

grounds, including that the specific documents the court ordered

Schindler to produce mid-trial had not expressly been requested

pretrial; that Ceasar failed to file a motion to compel pretrial; and that

the mid-trial discovery order was burdensome, distracting, and violated

the rule that “discovery must be conducted during the [pretrial]

discovery period” for Level 2 cases. 39

The court of appeals concluded that the discovery and sanctions

orders were not an abuse of discretion. 40 We agree. We reject Schindler’s

complaint about the trial court’s requiring discovery during trial

because “[t]he court may modify a discovery control plan at any time and

must do so when the interest of justice requires.” 41 The record reflects

that the trial court was within its discretion in determining that justice

required Schindler to produce the policy manual and missing work

orders despite the trial’s having commenced.

We likewise reject Schindler’s challenge to the court’s $25,000

sanctions order. Any sanctions order must be “just”, which we

“measure[] by two standards.” 42 “First, a direct relationship must exist

39 See TEX. R. CIV. P. 190.3(b)(1)(B) (“All discovery must be conducted

during the discovery period, which begins when the first initial disclosures are

due and continues until[] . . . the earlier of (i) 30 days before the date set for

trial, or (ii) nine months after the first initial disclosures are due.”).

40666 S.W.3d at 56, 59; see Cire v. Cummings, 134 S.W.3d 835, 838 (Tex.

2004) (“A trial court’s ruling on a motion for sanctions is reviewed under an

abuse of discretion standard.”).

41 TEX. R. CIV. P. 190.5.

42 TransAm. Nat. Gas Corp. v. Powell, 811 S.W.2d 913, 917 (Tex. 1991).

16

between the offensive conduct and the sanction imposed”, which

requires the court to “attempt to determine whether the offensive

conduct is attributable to counsel only, or to the party only, or to both.” 43

“Second, just sanctions must not be excessive.” 44 “A sanction imposed for

discovery abuse should be no more severe than necessary to satisfy its

legitimate purposes”, and “courts must consider the availability of less

stringent sanctions and whether such lesser sanctions would fully

promote compliance.” 45 The record reflects that the court carefully

adhered to these standards. The court determined that the fault lay with

Schindler and not its counsel. And it imposed a far lighter sanction than

Ceasar had requested, while reasoning that anything less than $25,000

would be ineffective under the circumstances.

We affirm the part of the court of appeals’ judgment relating to

this discovery sanction.

B

Schindler challenges (1) the trial court’s exclusion of evidence

that three years before the elevator accident, Ceasar applied for federal

Social Security Disability benefits and his application was denied; and

(2) the court’s exclusion of evidence that Ceasar had filed a personal-

injury lawsuit for injuries to his neck and back caused by a car accident

in 2014. With respect to each ruling, the court of appeals concluded that

the trial court did not abuse its discretion or that any error was

43 Id.

44 Id.

45 Id.

17

harmless. 46 We agree.

Schindler argues that Ceasar’s federal benefits application is

relevant to demonstrate that Ceasar claimed to have neck and back

injuries years before the elevator incident. The trial court concluded that

the application lacked probative value and that its admission would be

unduly prejudicial. 47 But while excluding the application itself, the court

allowed Schindler to cross-examine Ceasar on statements made in the

application. Ceasar testified to having received treatment for back pain

prior to the elevator accident. Ceasar’s treating neurosurgeon also

testified that Ceasar had been “very open” with him about back

problems that predated the elevator accident. Finally, there are many

reasons why an application for disability benefits might be denied; the

mere fact of the application’s denial is not probative of Ceasar’s

credibility.

Schindler also argues that the lawsuit arising from Ceasar’s 2014

car accident demonstrates that Ceasar’s neck and back injuries occurred

before the elevator accident. The court allowed Schindler to examine

Ceasar about any injuries resulting from a prior car accident but

reasoned that “whether or not the plaintiff had initiated legal

proceedings or had filed the lawsuit or had to seek legal redress in

regards to that purported injury, ultimately, that is not very

relevant . . . absent a specific and particularized showing of relevance.”

These rulings were within the trial court’s discretion.

46 See 666 S.W.3d at 50-51.

47 TEX. R. EVID. 401-403.

18

C

Schindler’s final challenge is to the court’s refusal to instruct the

jury on spoliation despite Ceasar’s having deleted a Facebook live video

that he made while trapped in the elevator. Ceasar broadcast live on

Facebook while he was trapped in the elevator, but he turned the video

off when he exited. Ceasar testified that he recorded the video “to let

people know this is where [he was]” because he was “scared” that the

elevator “was going to drop”. He further testified that the video showed

him “screaming for help”, “knocking on the door”, and “kicking on the

door”. Ceasar testified that he deleted the video the day after the

accident because he “just didn’t enjoy . . . the way it made [him] feel” and

because it caused him to “reliv[e] the moment . . . again.” Finally,

Ceasar testified that if he had known he would be filing a lawsuit, he

would have kept the video to “show[] everybody.”

The Eleganté’s on-duty manager, Elizabeth Pearson, testified

that she saw the video and that Ceasar did not appear to be injured but

that he did appear agitated and was kicking the elevator door to try and

open it. Schindler requested the following jury instruction, which the

court declined to include:

Plaintiff, Darren Ceasar, destroyed/failed to preserve his

Facebook Live video. You must consider that the Facebook

Live video would have been unfavorable to the Plaintiff,

Darren Ceasar, on the issue of his description of the

incident, his injuries, his frame of mind, as well as his

credibility.

To impose a remedy for spoliation, “the trial court must

19

determine, as a question of law, whether a party spoliated evidence”. 48

The determination requires two findings: “(1) the spoliating party had a

duty to reasonably preserve evidence, and (2) the party intentionally or

negligently breached that duty by failing to do so.” 49 “Upon a finding of

spoliation, the trial court has broad discretion to impose a

[proportionate] remedy . . . .” 50 The court’s factual findings and

imposition of a remedy, if any, are reviewed for abuse of discretion. 51

In denying the instruction, the court reasoned that the inclusion

of a spoliation instruction requires “an extremely high showing” that the

destruction of evidence was “done maliciously or intentionally in order

to hinder the opposing party’s presentation of the case.” The court stated

that it “[did not] find” that this was “established from the evidence or

from the briefing.” The court noted additionally that there were

witnesses besides Pearson who had seen the video but that Schindler

had never presented their testimony to the jury. The court explained

that it would have given Schindler latitude to present that witness

testimony and that it would allow Schindler some leeway in closing

argument to address the video’s deletion.

After reviewing the record, we agree with the court of appeals

that the trial court did not abuse its discretion by declining Schindler’s

request for a spoliation instruction. 52

48 Brookshire Bros., Ltd. v. Aldridge, 438 S.W.3d 9, 14 (Tex. 2014).

49 Id.

50 Id.

51 Id. at 27.

52 666 S.W.3d at 64.

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* * * * *

We affirm the part of the court of appeals’ judgment relating to

the sanctions imposed on Schindler. We otherwise reverse the court of

appeals’ judgment, and we remand to the trial court for a new trial.

Nathan L. Hecht

Chief Justice

OPINION DELIVERED: June 16, 2023

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