MILLER, P. J., DOYLE and REESE, JJ.
MILLER, PRESIDING JUDGE.
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. 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.
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).
viewed, and as we stated in Sheats I, the evidence
[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.
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.
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.
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).
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.
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 ...