Ruth E. Richter v. City of Omaha

Ruth E . Richter sustained personal injuries when she stepped
into a hole located on a public right‑of‑way in front of her home.
Richter claims the City of O maha (the City) was negligent in
failing to warn the public of a dangerous condition, failing to
provide safe passage of a right‑of‑way, and failing to exercise due
care in the operation of its business. Following a bench trial, the
court determined that the City was not negligent and dismissed
Richter's petition. We affirm.

On May 28, 1999, a city work crew was trimming overhanging
branches from a tree located in front of Richter's home. Richter
walked outside and asked the workers to stop trimming the trees.
The workers refused and asked her to back away from them and
their truck. As Richter backed away, she stepped into a hole with
her right foot and fell to the ground, injuring her ankle and twisting
her knee. Richter testified that as a result of her fall, she saw
multiple doctors and incurred approximately $11,422 in total
medical expenses.

The hole in which Richter fell was located on a grassy area
between the street and the sidewalk in front of Richter's residence.
Although this section of land is a public right‑of‑way,
Richter was responsible for maintaining the area.

The parties dispute how the hole was created. Richter testified
that she believed the City created the hole when it removed a "No
Parking" sign and failed to fill in the hole left behind. Richter
testified that before she fell, there were three traffic signs posted along this public right‑of‑way. She alleges, however, that at the
time of her accident on May 28, 1999, there were only two traffic
signs remaining because one of them had been removed, thus
creating the hole that caused her to fall.

Shortly after her fall in 1999, Richter took pictures of the hole
and the signs on the right‑of‑way, and she offered the pictures
into evidence at trial. The pictures revealed that at that time,
there were three signs posted on the public right‑of‑way. The
southernmost sign is a "No Turn on Red" sign, the middle sign
is a "No Trucks O ver 6 Tons" sign, and the northernmost sign is
a "No P arking" sign. Although the record does not provide exact
measurements, the pictures show that the hole in which Richter
fell was located a few feet to the south of the middle sign.

Richter testified that although the pictures establish that there
are three signs posted on the public right‑of‑way, at the time of
her accident, there were only two signs posted, the "No Turn on
Red" sign and the "No Trucks O ver 6 Tons" sign. In essence,
Richter claimed that at some point before her fall, the City
removed the "No P arking" sign, creating the hole that caused her
to fall, and left the other two signs in place. She then claimed that
at some point after she fell, the City reinstalled the "No P arking"
sign and placed it north of where it had been previously located,
as shown in the photographs she offered into evidence. O n
cross‑examination, Richter admitted that she did not know when
the City allegedly removed the "No P arking" sign.

The City presented evidence that it did not remove any sign
from the location in question and, thus, did not create the hole that
caused Richter to fall. The City offered the testimony of Leanne
Ziettlow, the acting traffic engineer who, at all times relevant to
this case, was also the head of the traffic maintenance division.
As part of her job, Ziettlow maintained the records regarding the
removal and replacement of traffic signs within city limits.

Ziettlow testified that she reviewed the City's work orders
relating to the removal and replacement of traffic signs for the
years 1998 and 1999 and did not find any record that would
indicate that a sign had been removed or replaced in the public
right‑of‑way in front of Richter's home. Without objection,
Ziettlow explained that she was unable to review older work orders because the older work orders are destroyed as time passes
and the work orders prior to 1998 had already been destroyed.

Ziettlow further testified that approximately 10 years before
trial, the City stopped ordering nongalvanized posts for the signs.
She explained that the "No Trucks O ver 6 Tons" sign, located a
few feet in front of the hole, was a nongalvanized post and thus
had been in that location for at least 10 years. Ziettlow testified
that, assuming the "No Trucks O ver 6 Tons" sign had been in
place for at least 10 years, the City would not have originally
placed a "No P arking" sign in the location claimed by Richter.

Richter filed a petition on July 31, 2000, under the P olitical
Subdivisions Tort Claims Act, alleging that the City was negligent
in failing to warn the public of a dangerous condition, failing
to provide safe passage of a right‑of‑way, and failing to exercise
due care in the operation of its business. After a bench trial, the
court found in favor of the City. The court explained that "[T]he
evidence was insufficient as to how the hole came to be, when it
came to be a hole, and whether the City knew of this hole prior to
[Richter's] injury." The court continued, "there was insufficient
evidence that the City caused the hole or that it knew it was there
so it could be repaired in a timely manner" and "[t]o find that
it was caused by the City or that the City knew of the hole and
failed to repair it would be speculation." Richter appealed.

* * *

[4] It is a general rule that the intentional spoliation or destruction
of evidence relevant to a case raises a presumption, or,
more properly, an inference, that this evidence would have been
unfavorable to the case of the spoliator. Such a presumption or
inference arises, however, only where the spoliation or destruction
was intentional and indicates fraud and a desire to suppress
the truth, and it does not arise where the destruction was a matter
of routine with no fraudulent intent.10

In the present case, Richter argues that the City destroyed the
relevant work orders after she filed her petition. Richter offers
nothing in the way of argument as to what, in the record, affirmatively
demonstrates that the City destroyed the work orders
intentionally or in bad faith. Instead, the record indicates that the
work orders were destroyed in the ordinary course of the City's
business. Ziettlow testified that as time passes, the City destroys
the older work orders. Ziettlow explained that, while she could
not give a specific date for when the work orders were destroyed,
she "assume[d] it would have been January [2005]" because that
was the City's "standard practice."

The City further asserts that at the time the records were
destroyed, the City was unaware that Richter would claim that the
hole in question had been created by the removal of a traffic sign.
The City notes that neither Richter's original claim filed with
the City nor her petition allege that the hole was created by the
removal of a traffic sign. The City argues that until a few weeks
before trial, it assumed that Richter was claiming that the hole
was created by the city work crew who had worked on the trees.

In order for Richter to receive the adverse inference drawn
from the destruction of evidence, she must show that the City's
actions indicated fraud and a desire to suppress the truth.11 She
has failed to do so here. Accordingly, Richter was not entitled to
the adverse inference allowed under the rule of spoliation.

* * *

In reviewing a judgment awarded in a bench trial under the
Political Subdivisions Tort Claims Act, it is not the purview of this
court to reweigh the evidence.13 We must consider the evidence
in the light most favorable to the successful party.14 The only
evidence offered by Richter was her own testimony that the City
created the hole when it removed a traffic sign. She further claims
that the City reinstalled the traffic sign at some point after her fall
in 1999. Richter, however, was unable to specifically testify as to
when the removal or reinstallation of this sign occurred.

The City, however, presented the testimony of Ziettlow, the
acting traffic engineer, who explained that there were no work
orders for 1998 or 1999 relating to the removal or replacement
of traffic signs in that area, as alleged by Richter. Furthermore,
Ziettlow testified that it would not have made sense for the City
to have originally placed the "No P arking" sign where Richter
claimed it had been, because an existing traffic sign was already
posted within a few feet of that location. When considering the
evidence in the light most favorable to the City, we conclude that
the district court's factual determination that Richter failed to
present sufficient evidence that the City was negligent was not
clearly wrong.