Wortham v. Kroger Ltd., No. W2019-00496-COA-R3-CV

CourtCourt of Appeals of Tennessee
Writing for the CourtJ. STEVEN STAFFORD, JUDGE
Docket NumberNo. W2019-00496-COA-R3-CV
Decision Date16 July 2020


No. W2019-00496-COA-R3-CV


May 1, 2020 Session
July 16, 2020

Appeal from the Circuit Court for Shelby County
Robert Samual Weiss, Judge

Defendant grocery store appeals a jury verdict against it after a shopper fell in its store while operating a three-wheeled cart. The grocery store argues that the trial court erred in denying its motion for directed verdict, in granting summary judgment to a third-party defendant, and in not granting a new trial or remittitur of the substantial verdict. Because the grocery store has not met its burden to show reversible error, we affirm.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

J. STEVEN STAFFORD, P.J., W.S. delivered the opinion of the court, in which D. MICHAEL SWINEY, C.J., and FRANK G. CLEMENT, JR., P.J., M.S., joined.

Kevin D. Bernstein, Memphis, and Lance W. Thompson, Nashville, Tennessee, for the appellants, Kroger Limited Partnership I, and The Kroger Company.

Patrick M. Ardis and Daniel V. Parish, Memphis, Tennessee, for the appellee, Zula Wortham.

Richard Glassman and Lewis W. Lyons, Memphis, Tennessee, for the appellee, The Peggs Company, Inc.



On August 25, 2016, 88-year old Plaintiff/Appellee Zula Wortham went to shop at a store owned by Defendant/Appellant Kroger Limited Partnership ("Kroger"). Ms. Wortham's adult daughter, Regina Millen, retrieved a shopping cart for Ms. Wortham from the front lobby or vestibule. Ms. Wortham thereafter used the cart for approximately half

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an hour while shopping without incident. Near the end of her shopping, with her cart loaded with groceries, Ms. Wortham turned the cart to the right; the cart tipped over and caused Ms. Wortham to fall to the floor. The tipped over cart was discovered to be missing a wheel; the missing wheel was never located. Ms. Wortham suffered significant injuries from the fall, including a fractured bone and an injured hip that required surgery to repair, as well as a stay in a rehabilitation center. Ms. Wortham's medical bills totaled nearly $90,000.00. Approximately one month after the accident, Ms. Wortham retained counsel, who sent a letter to Kroger asking that it retain all video-recorded evidence of the incident.

Ms. Wortham filed suit against Kroger1 under both ordinary negligence and premises liability theories in July 2017. Ms. Wortham alleged that her injuries resulted when the wheel separated from her shopping cart. Kroger answered the complaint in September 2017, alleging that Ms. Wortham's injuries were proximately caused by a non-party, the Peggs Company, Inc. ("Peggs"), who was responsible for maintaining and servicing the carts pursuant to a contract with Kroger. Kroger also alleged comparative fault against Peggs and Ms. Wortham. Ms. Wortham thereafter sought and was granted leave to amend her complaint to add Peggs as a party. Peggs answered in January 2018, denying that it was liable for Ms. Wortham's injuries. In addition to answering Kroger's amended complaint, Kroger filed a cross-claim against Peggs for breach of contract and indemnity. This cross-claim was eventually severed from the underlying tort action by consent order of July 20, 2018, and is not at issue in this appeal.2

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Various motions and responses were filed, including motions related to protective orders, motions to strike, and motions to sever. Relevant to this appeal, Ms. Wortham was permitted to amend her claim to increase the ad damnum, but the trial court denied her request to include a claim for punitive damages.

On October 10, 2018, Peggs filed a motion for summary judgment regarding Ms. Wortham's claims against it. Therein, Peggs argued, inter alia, that it did not owe a duty to Ms. Wortham, that it did not breach its duty, and that there was no proof of causation.3 According to Peggs' statement of undisputed material facts, the relevant undisputed facts were as follows:

4. Though it is undisputed for the purposes of this Motion the subject cart was missing the front right wheel when it tipped over and Plaintiff fell, there is no evidence as to when the wheel actually separated from the cart.
5. The wheel and any other hardware that would secure it to the cart have never been located.
6. The cause of the wheel becoming detached is unknown.
7. The condition of the cart when Peggs arrived to perform work on Kroger's fleet of carts is unknown.

* * *

9. There is no evidence as to what work the Peggs technician on site . . . performed on the subject cart during the service call of August 11-August 12, 2016.
10. There is no evidence of what did or did not happen to the cart during the time period between when Peggs left the subject store on August 12, 2016,

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and Plaintiff's fall on August 25, 2016.

* * *

17. It is unknown when the subject cart was actually delivered to the subject store.

(Internal citations omitted). The statement of alleged undisputed material facts also contained additional facts concerning the work that Peggs' technician performed during the last visit prior to Ms. Wortham's fall. These facts included allegations that the condition of the cart when Peggs left the Kroger store was unknown and the lack of evidence concerning the work the technician performed. Although Kroger responded in opposition to this motion, it did not deny any of the facts set out verbatim above; Kroger did attempt to dispute the facts that related to the work that Peggs performed at the Kroger location during the service call prior to Ms. Wortham's accident. Kroger also asserted that material facts remained in dispute about whether Peggs committed negligence in its inspection and maintenance of the carts at the Kroger location at issue. Finally, Kroger asserted that Peggs' motion was rendered moot when Peggs settled with Ms. Wortham.4 For her part, Ms. Wortham did not dispute any of Peggs' alleged undisputed facts.

Kroger also filed a motion for summary judgment, arguing, inter alia, that Kroger did not owe a duty of care because a three-wheeled cart was not unreasonably dangerous or unsafe and that Ms. Wortham could not show actual or constructive notice of the defective cart. Kroger supported its motion with a memorandum and statement of undisputed material facts. Ms. Wortham eventually responded in opposition to Kroger's motion.

On December 21, 2018, Ms. Wortham filed a number of motions in limine, as well as a motion seeking sanctions for Kroger's alleged spoliation of evidence. With regard to spoliation, Ms. Wortham argued that Kroger had destroyed video-recorded evidence from the Kroger store in the hours before and after the accident, as well as the full incident report and a training video concerning cart inspections. Ms. Wortham asked that Kroger be found to have intentionally spoliated the evidence and that sanctions, including striking the allegation of comparative fault, imposition of an adverse inference, and exclusion of evidence, be imposed.

On January 9, 2019, the trial court granted Peggs' motion for summary judgment as to the claims brought by Ms. Wortham. Therein, the trial court ruled that

[Ms. Wortham] cannot establish the requisite element of causation against Peggs. There is insufficient evidence to support a finding that [Ms.

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Wortham's] injuries, if any, arose from any services or work performed by Peggs or any of its employees or agents, nor is there any evidence to support a finding that [Ms. Wortham's] injuries were caused by any action, inaction or omission on the part of Peggs or any of its employees or agents.

The trial court designated this ruling as final under Rule 54.02 of the Tennessee Rules of Civil Procedure, and Kroger timely appealed the trial court's ruling to this Court.5

On January 14, 2019, the trial court entered an order granting Ms. Wortham's request to dismiss her premises liability claim. On the same day, the trial court granted in part and denied in part Peggs' motion for summary judgment as to Kroger's cross-claims. In particular, the trial court again ruled that there was insufficient evidence to show that Peggs committed any negligence that resulted in Ms. Wortham's injuries. As such, the trial court dismissed Kroger's indemnity claims. The trial court, however, reserved ruling on Kroger's claim for breach of contract.

Also on January 14, 2019, the trial court granted Ms. Wortham's motion for sanctions against Kroger for spoliation of the video-recordings in the store on the day of the incident. Therein, the trial court found that despite twenty-two cameras being operational on the day in question and both verbal and written requests to preserve evidence, the videos "were not preserved." The trial court therefore ruled that it would instruct the jury "regarding spoliation of evidence by Kroger and under Tennessee Pattern Jury Instruction 2.04-Absence of Evidence with respect to the missing videos from the day of the incident."

Trial occurred over four non-consecutive days in January 2019. It was undisputed that the cart Ms. Wortham was operating that day only had three wheels at the time of Ms. Wortham's fall. Although Kroger employees thoroughly inspected the store and vestibule for the missing wheel and housing, it was never located. According to Ms. Wortham, prior to her accident, she lived an independent and largely pain-free life. Ms. Wortham generally lived alone during this time. She also enjoyed grocery shopping, cooking weekly large meals for her family, and attending activities and services at her church and the senior citizen center, including trips to casinos, playing games, and taking walks for exercise. Before the accident, Ms. Wortham was able to walk mostly without a cane and stand for significant periods of time. Ms. Wortham's daughter, who was present on the day in question, echoed Ms. Wortham's testimony.

The fall caused Ms. Wortham to fall to her knees and hip on the floor....

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