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Sheats v. The Kroger Co.

Court of Appeals of Georgia, Second Division

September 8, 2017

SHEATS
v.
THE KROGER CO.

          MILLER, P. J., DOYLE and REESE, JJ.

          MILLER, PRESIDING JUDGE.

         This is the second appearance of this case in this Court. In Sheats v. Kroger Co., 336 Ga.App. 307 (784 S.E.2d 442) (2016) ("Sheats I "), we (i) vacated the trial court's denial of plaintiff Brenda Sheats' motion for spoliation sanctions against defendant The Kroger Company ("Kroger"); (ii) reversed the trial court's grant of summary judgment to Kroger on Sheats' claim for ordinary negligence; and (iii) remanded the case for the trial court to (a) reconsider Sheats' spoliation claim in light of the Supreme Court's decision in Phillips v. Harmon, 297 Ga. 386 (774 S.E.2d 596) (2015), and (b) reconsider Sheats' ordinary negligence claim in light of the trial court's disposition on remand of Sheats' spoliation claim.[1] Sheats I, supra, 336 Ga.App. at 311 (1) (a), 313-314 (6). On remand, after considering the factors set forth in Phillips, the trial court again denied Sheats' spoliation claim and granted summary judgment to Kroger on Sheats' claim for ordinary negligence. Sheats appeals, contending that the trial court improperly applied the Phillips factors to her spoliation claim and that summary judgment in favor of Kroger was not warranted on her ordinary negligence claim. For the reasons that follow, we affirm.

         "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. We review a trial court's grant of summary judgment de novo, construing the evidence, and all reasonable conclusions and inferences drawn from it, in favor of the nonmovant." (Citations and punctuation omitted.) Thomas v. Summers, 329 Ga.App. 250, 250 (764 S.E.2d 578) (2014); see also OCGA § 9-11-56 (c).

         So viewed, and as we stated in Sheats I, the evidence shows that:

[O]n 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 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 I, supra, 336 Ga.App. at 308-309.

         Sheats sued Kroger, asserting various causes of action, including, as relevant to this appeal, ordinary negligence. Sheats also filed a motion for spoliation sanctions based on Kroger's disposal of the ginger ale package before she was able to inspect it. The trial court denied Sheats' spoliation motion on the ground that she had not notified Kroger that she was contemplating litigation before it disposed of the package. Kroger then moved for summary judgment, asserting, in relevant part, that no record evidence showed that the package failure was foreseeable to Kroger. The trial court agreed and granted summary judgment to Kroger.

         Sheats appealed, challenging the denial of her motion for sanctions and the grant of summary judgment to Kroger. See Sheats I, supra, 336 Ga.App. at 307-308. We vacated the trial court's spoliation ruling, explaining that it "was based on the legally incorrect premise that Kroger's duty to preserve the evidence required actual notice of litigation from Sheats, " and remanded the case for the trial court to reconsider the spoliation motion in accordance with the factors set forth in Phillips, supra, 297 Ga. at 397-398 (II). Sheats I, supra, 336 Ga.App. at 311 (1) (a). Given our ruling on this issue, we also reversed the grant of summary judgment to Kroger on Sheats' ordinary negligence claim, explaining that whether that claim is a jury issue "cannot be determined until the trial court first determines on remand whether spoliation occurred and, if so, which spoliation sanctions are appropriate." Id. at 313 (6).

         On remand, after addressing the Phillips factors, the trial court again denied Sheats' motion for spoliation sanctions and granted summary judgment to Kroger on her ordinary negligence claim. This appeal followed.

         1. In two related enumerations of error, Sheats challenges the trial court's conclusion that no sanctionable spoliation occurred. She contends that, under a proper application of the Phillips factors, Kroger had a duty to preserve the cardboard package because it had constructive knowledge that litigation was reasonably ...


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