Kroger Co. v. Walters
319 Ga. App. 52
Ga. Ct. App.2012Background
- Walters slipped on banana in Kroger meat dept. in 2008, injuring his spine; Kroger’s video evidence was deleted and alleged to be manipulated.
- Kroger’s store manager and incident investigator prepared a “Customer Incident Report” stating it was made in anticipation of litigation; video policy required retention but video was erased.
- Walters sought spoliation sanctions; court found spoliation and bad faith, but denied summary judgment and allowed causation/damages to be tried.
- Kroger later moved in limine to exclude spoliation/manipulation evidence; the court admitted spoliation evidence but excluded Wigley’s testimony.
- Jury awarded Walters damages and attorney fees; on appeal, court affirmed spoliation finding but reversed on exclusion of material evidence and remanded for retrial on causation, damages, and fees.
- Interlocutory appeal proceedings and Baxley discussion cited to explain spoliation standards and notice requirements.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether spoliation supported sanctions and admissibility | Walters: spoliation showed litigation contemplated; sanctions justified | Kroger: no litigation contemplation or prejudice | Spoliation established; sanctions proper |
| Admissibility of spoliation/manipulation evidence and Wigley testimony | Evid. relevant to causation and credibility | Wigley testimony should be excluded for late notice | Spoliation/manipulation evidence admissible; Wigley testimony excluded as in limine error on timing |
| Impact of spoliation on causation and damages trial | Evidence could prove Kroger negligent, affecting damages | No preclusive effect on liability; trial proper | Spoliation evidence admissible; supports retrial of causation/damages |
| Attorney fees under OCGA 13-6-11 | Fees proper if no bona fide controversy | No basis for fees unless liability contested | Fees evidence admissible; jury may determine recoverability |
| Doctrine of remand and final judgment | Remand for new trial on causation, damages, and fees | Partial affirmation; need for new trial on issues | Affirm spoliation finding; reverse on judgment; remand for new trial |
Key Cases Cited
- Baxley v. Kroger Co., 282 Ga. 312 (2007) (spoliation creates presumption against spoliator when litigation contemplated)
- Silman v. Assocs. Bellemeade, 286 Ga. 27 (2009) (spoliation defined; broad discretion; abuse of discretion review)
- Langlois v. Wolford, 246 Ga. App. 209 (2000) (spoliation evidence relevant to liability and credibility)
- Brown v. Baker, 197 Ga. App. 466 (1990) (post-cause evidence admissible to show unnecessary trouble/expense)
- Buffalo Cab Co. v. Williams, 126 Ga. App. 522 (1972) (unnecessary trouble and expense sanction rationale)