                                                                           FILED
                            NOT FOR PUBLICATION                             FEB 27 2012

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



DAE KON KWON,                                    No. 10-15847

              Plaintiff - Appellant,             D.C. No. 1:08-cv-00360-JMS-
                                                 BMK
  v.

COSTCO WHOLESALE                                 MEMORANDUM *
CORPORATION,

              Defendant - Appellee.



                    Appeal from the United States District Court
                             for the District of Hawaii
                   J. Michael Seabright, District Judge, Presiding

                     Argued and Submitted February 15, 2012
                               Honolulu, Hawaii

Before: GOODWIN, TROTT, and MURGUIA, Circuit Judges.

       Dae Kon Kwon appeals the defense verdict in the bench trial of her diversity

action for damages incurred in a trip and fall while on the premises of Costco, the

defendant.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      Kwon, an 83-year-old woman, was injured when she tripped on an 18-foot-

long chain of flatbed carts while shopping at a Costco warehouse. After the

incident, Costco failed to preserve a surveillance videotape that may have recorded

the incident. The district court found that Costco’s failure to preserve the

videotape constituted spoliation, and granted Kwon’s pretrial motion for an

adverse inference against Costco.

      The key disputed fact in this controversy was whether the carts were moving

or stationary at the time Kwon collided with them. The district court found, after it

weighed the evidence and made credibility findings, that the carts were stationary.

The court relied on that finding to conclude that a stationary row of five flatbed

carts is not an unreasonable hazard and that Kwon was negligent for failing to see

and avoid the carts, which the court determined to be obvious obstructions in her

path of travel.

      Kwon argues that the district court erred by not applying the adverse

inference to the question of whether the carts were moving at the time of the

collision. The record does not support this assertion.

      We review a district court’s findings of fact for clear error, whether those

findings are based on inferences or direct evidence. Fed. R. Civ. P. 52(a)(6);

Darensburg v. Metro. Transp. Comm’n, 636 F.3d 511, 519 (9th Cir. 2011). Clear


                                           2
error occurs when a district court’s findings of fact are illogical, implausible, or not

supported by inferences that may be drawn from the facts in the record. Anderson

v. City of Bessemer City, N.C., 470 U.S. 564, 577 (1985); accord United States v.

Hinkson, 585 F.3d 1247, 1260 (9th Cir. 2009) (en banc).

      A fact finder may draw an inference against any party that destroys or

despoils evidence, but that inference is permissive rather than mandatory. See

Glover v. BIC Corp., 6 F.3d 1318, 1329 (9th Cir. 1993) (noting that a district court

“has the broad discretionary power to permit a jury to draw an adverse inference

from the destruction or spoliation against the party or witness responsible for that

behavior” (emphasis added)); Akiona v. United States, 938 F.2d 158, 161 (9th Cir.

1991) (“Generally, a trier of fact may draw an adverse inference from the

destruction of evidence relevant to a case.” (emphasis added)).

      In this case, the district court chose not to infer that the carts were moving.

Instead, it relied on Costco employee Madamba’s credible testimony that the carts

were stationary. The finding that the carts were stationary is logical, plausible, and

supported by inferences that may be drawn from the record. Accordingly, the

court’s finding was not clear error.

      Kwon also argues that the district court applied the wrong legal standard

regarding Costco’s duty to warn Kwon. The district court found that neither


                                           3
Madamba nor any other Costco employee had notice that Kwon failed to see the

carts and, accordingly, Costco had no duty to warn Kwon.

      Kwon acknowledges that the duty to warn arises upon notice, but she argues

that the court’s conclusion “requires the absurd result” that Costco is shielded from

a duty to warn if an employee does not keep a proper lookout for shoppers needing

warning, even when the employee has notice that the hazard exists on the premises.

      Kwon’s argument is flawed, however, because it incorrectly assumes that

Madamba was not keeping a proper lookout. Madamba was looking over her

shoulder to determine when it was safe to resume pushing the carts through the

crowd of visitors. Madamba may have been keeping a proper lookout; the district

court did not conclude that her conduct was unreasonable. Accordingly, the court

applied the correct legal standard.

      The judgment is AFFIRMED.




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