Powers v. Southern Family Markets of Eastman, LLC.
320 Ga. App. 478
| Ga. Ct. App. | 2013Background
- Powers slipped and fell at a Piggly Wiggly owned by Southern; incident occurred May 27, 2008.
- Store employee had been cleaning with a mopping device; two wet floor signs were present.
- Law prepared an incident report, diagram, and photos as part of routine investigation.
- Southern did not preserve store video footage because no litigation was contemplated at time of the incident.
- Southern learned of contemplated litigation about three months after the incident; store video from that day no longer existed.
- Powers sued about nine months after the incident; Southern denied possession of any video in discovery; spoliation motion followed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Spoliation—notice of contemplated litigation required | Powers contends Southern knew litigation was contemplated and thus spoliation occurred | Southern argues no litigation contemplation when video was overwritten | No spoliation; trial court did not abuse discretion |
| In limine excluding spoliation testimony | Testimony about absence of video could be probative | Absence of video could mislead jurors since no spoliation occurred | Trial court did not abuse discretion; exclusion upheld |
| Discovery—witness addresses and confidentiality of policy documents | Requested witness addresses; confidentiality agreement unnecessary | Addresses available; confidentiality needed for sensitive policy | No reversible error; discovery rulings upheld |
Key Cases Cited
- Kitchens v. Brusman, 303 Ga. App. 703 (Ga. App. 2010) (spoliation and preservation standards; trial court discretion)
- Silman v. Assocs. Bellemeade, 286 Ga. 27 (Ga. 2009) (limits on spoliation remedies; notice requirements)
- Craig v. Bailey Bros. Realty, 304 Ga. App. 794 (Ga. App. 2010) (discovery and spoliation-related rulings; abuse of discretion standard)
- D. G. Jenkins Homes v. Wood, 261 Ga. App. 322 (Ga. App. 2003) (discovery and evidentiary rulings; broad discretion of trial court)
- Hankla v. Jackson, 305 Ga. App. 391 (Ga. App. 2010) (spoliation standards; appellate review of factual findings)
- Paggett v. The Kroger Co., 311 Ga. App. 690 (Ga. App. 2011) (spoliation and evidence preservation; trial court decisions affirmed)