## Facts

- Carla Freidig slipped and fell in a checkout lane at a Target store in Wisconsin, alleging she slipped on a puddle and injured her wrist.
- Immediately after the incident, Freidig completed a store incident report stating she slipped on a puddle.
- Target obtained a statement from cashier Sarah Raemisch, who said she walked through the checkout lane about 10–15 minutes before the fall but did not notice or look for a puddle.
- Target had a written policy to preserve surveillance footage for 20 minutes before and 20 minutes after a reported accident, but it preserved only footage beginning about six seconds before the fall; earlier footage was lost with no backup.
- Freidig brought suit under Wisconsin’s safe-place statute, Wis. Stat. § 101.11; she later abandoned a separate common-law negligence theory.
- Target moved for summary judgment, disputing medical causation and arguing there was insufficient evidence that it had actual or constructive notice of the puddle.
- Freidig sought relief under Federal Rule of Civil Procedure 37(e), arguing the lost pre-incident footage prejudiced her ability to prove constructive notice.

## Issues

1. Whether the evidence permitted a reasonable jury to find that the fall caused Freidig’s wrist injury.
2. Whether the evidence permitted a reasonable jury to find Target had constructive notice of the puddle as required by Wisconsin’s safe-place statute.
3. Whether Target failed to preserve electronically stored information within the scope of Rule 37(e), and what curative measures or sanctions were warranted.

## Decision

- Target’s summary judgment motion was denied because genuine disputes of material fact existed on causation and constructive notice.
- The court found Target had a duty to preserve the pre-incident surveillance video and failed to do so.
- The court found Freidig was prejudiced by the loss of the pre-incident footage and granted Rule 37(e) relief in part.
- The court permitted trial use of tailored, permissive inferences regarding the missing footage, but declined to impose case-terminating sanctions or a mandatory adverse-inference instruction premised on bad faith.

## Legal Principles

- Under Wisconsin’s safe-place statute, a plaintiff generally must show an unsafe condition existed long enough, or under circumstances, that the owner had actual or constructive notice.
- Constructive notice may be proved by reasonable inferences from circumstantial evidence, and is commonly a jury question where competing inferences are possible.
- On summary judgment, disputes turning on credibility and reasonable interpretation of physical and medical evidence (including video of an incident) are ordinarily for the jury.
- Under Rule 37(e), if electronically stored information that should have been preserved is lost and the loss prejudices another party, the court may order measures no greater than necessary to cure the prejudice.
- A party’s incident-reporting practices and internal preservation policies can support a finding that litigation was reasonably foreseeable and that a preservation duty attached.

## Conclusion

The court held that disputes over medical causation and constructive notice under Wisconsin’s safe-place statute required a trial, and it applied Rule 37(e) to address Target’s loss of pre-incident surveillance footage by allowing limited, permissive inferences tailored to the prejudice caused by the missing evidence.


Freidig v. Target Corp., 329 F.R.D. 199 (W.D. Wis. 2018)