Sheats v. Kroger Co.

• Decision Date: 21 March 2016
• Docket Number: A15A2074.,Nos. A15A2073,s. A15A2073
• Citation: 784 S.E.2d 442,336 Ga. App. 307
• Parties: SHEATS v. The KROGER COMPANY et al. Sheats v. The Kroger Company et al.
• Court: Georgia Court of Appeals

336 Ga.App. 307

784 S.E.2d 442

SHEATS

v.The KROGER COMPANY et al.

Sheats

v.The Kroger Company et al.

Nos. A15A2073

A15A2074.

Court of Appeals of Georgia.

March 21, 2016.

Markus Boenig, Athens, Malcolm Ali Palmore, for Appellant.

Matthew Glenn Moffett, Jeffrey Mittar Wasick, Atlanta, M. Steven Heath, Candis Renae Jones, for Appellee.

MILLER, Presiding Judge.

In this personal injury case, Brenda Sheats sued The Kroger Co. and Clayton Distributing Company, Inc.("Clayton"), asserting claims based upon product liability, ordinary negligence, and res ipsa loquitur.Sheats also filed a motion for spoliation sanctions, asserting that Kroger destroyed evidence that was essential to her complaint.

In Case No. A15A2073, Sheats appeals from the trial court's order granting summary judgment to Clayton and denying her motion for spoliation sanctions against Kroger.In Case No. A15A2074, Sheats appeals from the grant of summary judgment to Kroger.For the reasons that follow, in Case No. A15A2073, we affirm the trial court's grant of summary judgment to Clayton, but vacate the trial court's denial of Sheats' motion for spoliation sanctions against Kroger, and we remand this case for further proceedings.In Case No. A15A2074, we affirm the trial court's grant of summary judgment to Kroger on Sheats' product liability and res ipsa loquitur claims, but reverse the grant of summary judgment to Kroger on Sheats' ordinary negligence claim.

"Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law.OCGA § 9–11–56(c).We apply a de novo standard of review to an appeal from the grant of summary judgment, construing the evidence in the light most favorable to the nonmovant."(Citation and punctuation omitted.)Walker v. Gwinnett Hosp. System,263 Ga.App. 554, 555, 588 S.E.2d 441(2003).

Viewed in this light, the evidence shows that, on November 7, 2011, Sheats was shopping at a Kroger grocery store in Athens.Sheats took a cardboard package containing several glass bottles of Red Rock Golden Ginger Ale off of a shelf and placed it in her cart.Sheats then lifted a second pack off the shelf.As she did so, the bottom of the package opened up, all of the glass bottles fell to the floor, and they broke.At least one bottle struck Sheats' left foot, injuring her.

A store security guard was called to the aisle where the incident occurred.Upon arriving at the scene, the guard found Sheats standing among broken glass and spilled liquid and holding an empty cardboard package with a bottom that was "fully broken open[ ]."When Sheats told the security guard what happened, the guard asked Sheats to step away from the debris, and she asked for the package Sheats was holding.Sheats refused and told the guard that she wanted to keep the package as evidence.The guard replied that she would keep the package as evidence instead.Sheats then complained to the guard about pain in her foot.The guard offered to call an ambulance, but Sheats declined, saying that she might go to a doctor later.

The guard escorted Sheats to the customer service counter at the front of the store, where Sheats told the store manager what happened.Sheats then told the manager that her left foot was hurting and she was going to the hospital.The manager completed a three-page "Customer Incident Report & Investigation Check List," which had the following statement printed on each page: "This report is being prepared in anticipation of litigation under the direction of legal counsel.It is confidential and is not to be released to any person unless approved by legal counsel and authorized by a member of Kroger management with such authority."The manager told Sheats that he would forward information about the incident to Kroger's headquarters, but he was not sure if Kroger's insurance would pay for treatment of the injury.

Shortly after the incident, the manager inspected the package and the shelf where it had been displayed and observed that both were dry.According to the manager, "[f]or some unknown reason, the glue on one side of the bottom of the package failed to stay glued to the other flap.I observed that one of the outside bottom flaps was cleanly separated from the other, inside bottom flap, and the glue was only stuck to one flap.It appeared to me that the glue didn't stick sufficiently to the other flap[.]"The manager then inspected all of the other Red Rock Ginger Ale packages on the shelf, but observed no similar problem.After inspecting the package, the manager recorded it, for inventory purposes, as a "lost" item due to breakage and put it with outgoing refuse to be discarded.The manager stated in his affidavit that, when he spoke to Sheats after the incident, he did not get the impression that Sheats would later file a lawsuit.

After leaving Kroger, Sheats went to a hospital emergency room.She was subsequently diagnosed with a blood clot in her left big toe and had to have surgery to remove the toenail.Sheats had to wear a protective shoe for two months after her surgery.Additionally, her toenail failed to grow back correctly, and she still had pain in her toe at the time of the summary judgment hearing.

Sheats filed this personal injury suit against Kroger and Clayton, setting forth product liability, ordinary negligence and res ipsa loquitur claims.Clayton filed a motion for summary judgment on the ground that Sheats had not provided any evidence to prove that the cardboard package had been defective.Kroger also filed a motion for summary judgment on the same basis.Sheats then filed a motion for spoliation sanctions against both defendants on the ground that Kroger had destroyed essential evidence, i.e., the package.

The trial court granted summary judgment to Clayton and Kroger on Sheat's product liability claims due to her failure to present evidence that the package was defective.It denied Sheats' motion for spoliation sanctions on the ground that she did not provide Kroger with actual notice that she was contemplating litigation at the time of the incident.The trial court also granted summary judgment to Kroger on Sheats' ordinary negligence and res ipsa loquitur claims.

Case No. A15A2073

1.Sheats argues that the trial court erred in denying her motion for spoliation sanctions because, at the time of the incident, Kroger should have reasonably anticipated that she was contemplating litigation.We agree.

(a)Spoliation sanctions against Kroger.

Spoliation is "the destruction or failure to preserve evidence" that is relevant to "contemplated or pending litigation."(Citation and punctuation omitted.)Phillips v. Harmon,297 Ga. 386, 393(II), 774 S.E.2d 596(2015).The destruction of evidence "may give rise to the rebuttable presumption that the evidence would have been harmful to the spoliator.However, in order for the injured party to pursue a remedy for spoliation, the spoliating party must have been under a duty to preserve the evidence at issue."

Id. at 394(II), 774 S.E.2d 596.Moreover, a defendant's duty to preserve evidence, is not limited to situations where the plaintiff provides actual or express notice of litigation.Rather,

[n]otice that the plaintiff is contemplating litigation may also be derived from, ... other circumstances, such as the type and extent of the injury; the extent to which fault for the injury is clear; the potential financial exposure if faced with a finding of liability; the relationship and course of conduct between the parties, including past litigation or threatened litigation; and the frequency with which litigation occurs in similar circumstances.

Id. at 397(II), 774 S.E.2d 596."Certainly a trial court has wide discretion in adjudicating spoliation issues, and such discretion will not be disturbed absent abuse.However, an appellate court cannot affirm a trial court's reasoning which is based upon an erroneous legal theory."(Citations omitted.)Id.

In this case, the trial court ruled that the uncontroverted evidence showed that Sheats failed to provide Kroger with actual notice that she was contemplating litigation at the time of her injury.In so ruling, the trial court relied solely on Sheats' deposition, wherein she was asked whether she was contemplating filing a lawsuit when she asked to keep the package, and Sheats answered "No."The trial court's ruling was based on the legally incorrect premise that Kroger's duty to preserve the evidence required actual notice of litigation from Sheats.Consequently, we vacate the denial of Sheats' spoliation motion as to Kroger and remand this case for the trial court to reconsider that motion in light of the correct legal analysis as set forth herein.SeePhillips,supra, 297 Ga. at 397–398(II), 774 S.E.2d 596.

(b)Spoliation sanctions against Clayton.

Sanctions for spoliation cannot be applied against a party who did not destroy the evidence when there is no evidence to show that the destroying party was acting at the behest of the other party.Boswell v. Overhead Door Corp.,292 Ga.App. 234, 235–236, 664 S.E.2d 262(2008).It follows that, because there is no evidence to show that Clayton directed Kroger to destroy the package or was even aware of the incident before it was destroyed, the trial court properly denied the motion for spoliation sanctions as to Clayton.

2.Sheats contends that the trial court erred in granting summary judgment to Clayton on her product liability claim on the basis that she failed to present evidence to prove that the package was defective.We disagree.

Regardless of whether the plaintiff proceeds under a theory of strict liability or negligence, the essence of a product liability claim is the presence of an actual defect in the product.Boswell,supra, 292 Ga.App. at 235, 664 S.E.2d 262.In order to prevail on such a claim, Sheats must prove that there was a defect in the product when it left the manufacturer, the defect was caused by the manufacturer's negligence, and...