Fethkenher v. Kroger Co.

• Decision Date: 03 June 2004
• Docket Number: No. 2-02-450-CV.,2-02-450-CV.
• Citation: 139 S.W.3d 24
• Parties: Dorothy FETHKENHER, Appellant, v. The KROGER CO., Appellee.
• Court: Texas Court of Appeals

139 S.W.3d 24

Dorothy FETHKENHER, Appellant, v. The KROGER CO., Appellee.

No. 2-02-450-CV.

Court of Appeals of Texas, Fort Worth.

June 3, 2004.

Appeal from the 355th District Court, Hood County, Ralph H. Walton, Jr., J Maher Law Firm, Constance Maher, Arlington, for Appellant.

Uloth & Peavler, L.L.P., Donna Peavler, Dallas, for Appellee.

Panel B: HOLMAN, GARDNER, and WALKER, JJ.

OPINION

DIXON W. HOLMAN, Justice.

I. FACTUAL AND PROCEDURAL BACKGROUND

An automatic door struck Appellant Dorothy Fethkenher as she was exiting a Kroger store in Granbury, Texas on September 13, 1999. Appellant reported the incident to Kroger and went home, where she treated injuries to her head, right hand, and right arm with ice and over-the-counter pain medicine. The following day, Appellant went to a hospital emergency room, seeking medical attention for pain and swelling in her right hand and arm. After x-rays revealed no broken bones, the emergency room doctor referred Appellant to an osteopathic doctor, who in turn referred her to a physical therapist. When Appellant's condition did not improve with therapy, she sought a second opinion from Dr. Robert Protzman, an orthopedic surgeon. After a course of more conservative treatment failed, Appellant underwent three separate surgeries to eliminate pain and other problems, including ulnar nerve surgery on both her left and right arms and endoscopic carpal tunnel release on her right wrist.

Appellant sued Appellee The Kroger Co. for negligence seeking damages for the cost of medical care, pain and suffering, impairment, and disfigurement. Appellee denied liability and alleged a number of defenses to Appellant's claims. In connection with the suit, Appellant sent Kroger an interrogatory that included a request that Kroger describe "any previous incidents pertaining to automatic door malfunction at The Kroger Co. stores during the last ten (10) years, from 1989 through 1999." Appellee, noting that it operates over 2,500 grocery stores in more than thirty states, objected to this request as being overly broad, unduly burdensome, and not reasonably calculated to lead to the discovery of admissible evidence. Appellee confirmed, however, that it had no knowledge of any incidents involving the doors at the Granbury store in the two years prior to Appellant's incident. Appellant filed a motion to compel, asking the trial court to order more complete responses to her discovery requests.

At the hearing on Appellant's motion, Appellee argued that because it had a two-year document retention policy, it was not possible to produce information for the last ten years. The trial court limited Appellant's request and ordered Appellee to produce documents related only to the particular door at the store where the incident occurred for the period dating back to the installation of the doors, approximately three or four years. In response, Appellant asked the trial court to consider modifying the discovery order to include all of the doors in Appellee's southwest region rather than only the door in question. The trial court declined to expand the discovery order to the 188-store region and reiterated Appellee's obligation to produce documents relating only to the specific door involved in the incident.

Throughout this case, the parties' attorneys demonstrated an acrimonious working relationship and an inability to conduct discovery without court intervention. The record is replete with accusatory letters from both sides, three motions to compel, and five separate motions for sanctions-two from the Appellant and three from the Appellee. On September 27, 2002, Appellee filed its second motion for sanctions against Appellant's counsel under Texas Rules of Civil Procedure 215.1 and 215.2. Claiming several justifications for the imposition of sanctions, Appellee asked the court to fine Appellant's counsel $2,967.25. Appellee's motion for sanctions requested relief based on allegations that Appellant's counsel:

1) Refused to produce Appellant for deposition.

2) Refused to attempt an agreed proposed order regarding the trial court's rulings on a previous motion to compel.

3) Refused to non-suit a Kroger store manager that did not work at the Granbury store at the time of the incident, as previously promised by Appellant's attorney.

4) Refused to confer on Appellee's motion to compel. Specifically, Appellant's counsel failed to respond to two letters asking for supplemental discovery responses.

Appellee attached numerous exhibits to the motion consisting primarily of correspondence between the parties' attorneys. Appellant's response, filed on October 7, 2002, notified the court that her deposition was noticed by Appellee for October 15, 2002.

At the hearing on the motion, Appellee urged the court to sanction Appellant's counsel for the reasons set forth in the sanctions motion as well as for new allegations. According to Appellee, Appellant's counsel misrepresented that she was subject to a trial setting in Dallas County that conflicted with the sanctions hearing in Hood County. Appellee informed the court that she called the court in Dallas County to confirm the conflict and discovered that Appellant's counsel was not, in fact, called to trial. Claiming a lack of candor to the court and opposing counsel, Appellee increased its request for sanctions to $5,000.

Appellant's counsel informed the trial court that the court in Dallas County notified her that she was on one-hour standby to appear at trial. As explained by Appellant's counsel, the Dallas court has a list of cases that are to be heard during a given week, and all cases on that list are on standby. Even though a case from the prior week was carried over, the court's instruction that Appellant's counsel remain on one-hour standby did not change. The trial court granted Appellee's motion "as a result of the various activities as set forth in the motion and as developed through the letters that are before the court," and ordered $1,500 in sanctions.

A trial was held on the merits of Appellant's case in November 2002. Garry DeLong, the store manager, testified at length about the doors. He explained that the doors appeared to be functioning normally immediately before and after the incident. DeLong attempted to get the door to improperly close again, but was unable to recreate the incident. With the help of a door repairman, DeLong again attempted to recreate the incident to no avail. According to DeLong, the repairman did not discover any malfunction and consequently did not make repairs to the door. Gail Maples, the former front-end manager, and Betty Jean Daughrity, the current front-end manager, testified that no one ever reported any previous problems regarding the doors closing on people. Several repair records and work orders admitted into evidence showed no problems of a similar nature that would cause the doors to improperly shut on people.

At the close of evidence, the jury was charged with determining whether the negligence of either or both parties proximately caused the occurrence. The jury charge included the following additional instructions:

An owner or occupier of a premises is not an insurer of the safety of its invitees.

An occurrence may be an "unavoidable accident," that is, an event not proximately caused by the negligence of any party to it.

....

In order to establish that THE KROGER CO. "reasonably should have known of the danger[,]" there must be some proof of how long the hazard existed prior to the incident in question.

The jury returned a verdict in favor of Appellee and the trial court rendered a take-nothing judgment against Appellant. In three issues, Appellant argues that the trial court erred: 1) in limiting her discovery regarding other automatic door-related injuries at Kroger stores; 2) in allowing unnecessary jury instructions that constituted impermissible comments on the weight of the evidence; and 3) in sanctioning Appellant's counsel. We affirm in part and reverse and render in part.

II. DISCUSSION

A. DISCOVERY

In her first issue, Appellant contends that the trial court erred in limiting her discovery regarding automatic doors to only the door involved in the accident because she was entitled to information pertaining to all automatic doors in every Kroger store over a ten-year period, as she requested in her interrogatory. We review discovery rulings for an abuse of discretion. In re CSX Corp., 124 S.W.3d 149, 152 (Tex.2003) (orig.proceeding). A trial court abuses its discretion when it acts without reference to guiding rules and principles. In re Colonial Pipeline Co., 968 S.W.2d 938, 941 (Tex.1998) (orig.proceeding). Although the scope of discovery is broad, it is limited by the legitimate interests of the opposing party to avoid overly broad requests, harassment, or disclosure of privileged information. In re Am. Optical Corp., 988 S.W.2d 711, 713 (Tex.1998) (orig.proceeding). A central consideration in determining overbreadth is whether discovery requests could have been more narrowly tailored. CSX, 124 S.W.3d at 153. Discovery may not be used as a fishing expedition or to impose unreasonable expenses on the opposing party. K Mart Corp. v. Sanderson, 937 S.W.2d 429, 431 (Tex.1996) (orig.proceeding).

The discovery request at issue, Appellant's interrogatory, asked Appellee to describe, in detail, any previous incidents pertaining to automatic door malfunctions at over 2,500 Kroger stores during the preceding ten years. The Texas Supreme Court has, on many occasions, held that requests like this are overly broad as a matter of law. CSX, 124 S.W.3d at 153 (stating that request to identify all safety employees who worked for defendant over a thirty-year period qualifies as a "fishing expedition"); K Mart, 937 S.W.2d at 431 (holding that request for information relating to all criminal activity on all K Mart property over last seven years was overbroad); Dillard Dep't Stores, Inc....