Holloway v. the Kroger Company
335 Ga. App. 705
Ga. Ct. App.2016Background
- Plaintiff Mildred Anne Holloway slipped and fell in a Kroger store foyer on a rainy day, alleging Kroger failed to exercise ordinary care to keep premises safe.
- Store manager observed water from carts on the floor; Holloway described the floor as "slippery" and "shiny."
- Kroger had multiple rainy-day measures in place: a greeter, wet-floor signs, foyer mats (none adjacent to the carts), and slip-resistant flooring.
- At trial the jury returned a defense verdict; Holloway appealed, raising arguments about improper closing statements and an inadequate jury instruction that counsel argument is not evidence.
- Defense counsel referenced (1) a voir dire occupation of a struck juror as an example of an expert and (2) photographs taken by Holloway’s daughter that were not admitted; the court admonished counsel about the photos during closing.
- Holloway did not object to the challenged closing remarks at trial and did not object to the final jury charge; she sought reversal based on alleged prosecutorial/defense misconduct and instructional error.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether defense counsel improperly urged reliance on a juror’s voir dire statements as expert testimony | Counsel improperly pointed to Juror No. 12’s occupation as if juror expertise could substitute for admissible expert testimony | Counsel merely referenced an occupation mentioned in voir dire; Juror No. 12 was struck and thus not on the panel, so no juror was relied upon | No reversible error: reference improper but no objection; struck juror never served and no reasonable probability result was affected |
| Whether counsel improperly suggested an expert was required on the ultimate issue of ordinary care | Suggestion that plaintiff should have presented an expert on ordinary care was improper because it invaded jury’s province | Expert testimony on ultimate issues can be admissible when subject matter is beyond jurors’ ken; absence of an expert was a valid argument | Not reversible: comment was permissible and plaintiff failed to show prejudice |
| Whether counsel’s mention of unadmitted photographs prejudiced plaintiff | Reference to non-admitted photos improperly injected evidence not before jury | Daughter testified photos existed; trial judge immediately admonished jury and told counsel to move on | No reversible error: existence of photos supported by testimony, judge admonished jury, counsel did not display photos |
| Whether trial court erred by not instructing in final charge that arguments are not evidence | Final charge omitted explicit statement that counsel argument is not evidence; plaintiff says jury may have treated argument as evidence | Court had given that instruction preliminarily and extensively defined evidence in final charge (stating questions, objections, and court statements are not evidence) | No harmful error: preliminary and final instructions, viewed together, adequately addressed the point and did not deprive plaintiff of a fair trial |
Key Cases Cited
- Stolte v. Fagan, 291 Ga. 477 (discusses harmless-error standard for improper closing argument)
- Hayward v. Kroger Co., 317 Ga. App. 795 (trial court may properly exclude expert risk-management evidence if not necessary for jury)
- Shilliday v. Dunaway, 220 Ga. App. 406 (addresses OCGA § 5-5-24(c) and prejudice from improper argument)
- Tillman v. Massey, 281 Ga. 291 (preliminary instructions generally cannot substitute for complete final instructions)
- Griffith v. State, 264 Ga. 326 (preliminary charge may mitigate prejudice from omission in final charge)