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Click here for the full text of this decision FACTS:On March 14, 2004, Sowell was in a Kroger store when she slipped on an unidentified liquid on the floor. Sowell sustained injuries and was taken to a hospital for treatment. On June 15, 2004, Sowell brought suit. Kroger filed a no-evidence motion for summary judgment on April 9, 2005, arguing that there was no evidence of 1. an unreasonable risk of harm or 2. that Kroger was aware of it. Sowell responded, arguing that Kroger intentionally or negligently destroyed witness statements, and that the spoliation should allow her to survive summary judgment. Sowell based her argument on a deposition of Richard Flores, a co-manager of the Kroger store where the accident took place. Flores prepared an incident report concerning Sowell’s fall. In his deposition testimony, Flores admitted that he had taken statements from witnesses and turned them over to Kroger’s risk management department. Sowell argued that because she did not receive the statements pursuant to a request for witness statements in her request for disclosure, a rebuttable presumption should apply against Kroger that it knew or should have known of an unreasonable risk of harm. After a hearing was held, the trial court granted summary judgment. HOLDING:Affirmed. During his deposition, Flores stated that he had taken statements from witnesses to the accident. He also stated that he included the statements in the file that he sent to the risk management department. Sowell argues that the fact that Kroger did not turn over the witness statements is proof that Kroger destroyed the documents and that they should be presumed to prove an unreasonable risk of harm. There is nothing in the record showing that these statements were ever requested by Sowell. Sowell included, as an appendix to her brief, her request for disclosure requesting witness statements. However, attachments of documents as exhibits or appendices to briefs is not a formal inclusion in the record on appeal. Till v. Thomas, 10 S.W.3d 730, 734 (Tex. App. – Houston [1st Dist.] 1999, no pet.). Because the request for disclosure was not a part of the record before the trial court, the trial court did not abuse its discretion in denying the presumption of spoliation, the court concludes. The court finds nothing in the record that provides some evidence that Kroger knew or should have known of an unreasonable risk of harm. OPINION:Higley, J.; Jennings, Hanks and Higley, JJ.

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