Sheats v. the Kroger Company, 342 Ga. App. 723

Background

On Nov. 7, 2011, Brenda Sheats lifted a cardboard pack of glass ginger-ale bottles at a Kroger; the bottom separated, bottles fell and broke, and at least one struck her left toe, causing injury and later medical treatment.
A Kroger security guard and store manager responded; Sheats refused to surrender the empty package and later asked to keep it as evidence; the manager took the package and discarded it as broken inventory.
The manager completed a multi-page incident report that included pre-printed language stating the report was prepared in anticipation of litigation; the manager said he used the form routinely and did not treat the incident as litigation-related at the time.
Sheats sued Kroger for negligence and moved for spoliation sanctions based on Kroger’s disposal of the package; the trial court initially denied sanctions and granted Kroger summary judgment on negligence.
On prior appeal (Sheats I), the Court of Appeals vacated the spoliation ruling (holding duty to preserve can be constructive) and reversed the summary judgment, remanding to apply the factors from Phillips v. Harmon.
On remand the trial court, after applying Phillips factors, again denied spoliation sanctions and granted summary judgment for Kroger; this appeal affirms those rulings.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Kroger had a duty to preserve the discarded package (spoliation) because litigation was reasonably foreseeable	Sheats: constructive notice existed (injury, report language, disposal) so Kroger should have preserved package and face sanctions	Kroger: no reasonable foreseeability — injury limited, manager saw package failure as accidental, no prior similar incidents, report form used routinely	Court: No abuse of discretion; trial court’s Phillips-factor findings supported Kroger (no sanctionable spoliation)
Whether pre-printed “anticipation of litigation” language on incident report establishes foreseeability	Sheats: form language shows Kroger anticipated litigation	Kroger: form is routinely used and Kroger produced it in discovery, showing it was not treated as privileged litigation material	Court: Pre-printed language alone did not outweigh other Phillips factors; trial court reasonably discounted it
Whether genuine issue of material fact exists that Kroger was negligent in selling defective packaging	Sheats: package failed and glue separation indicates a defect or unsafe display creating triable issue	Kroger: no evidence it knew or should have known of any latent defect; no notice or prior similar problems	Court: No evidence Kroger breached duty; summary judgment proper absent speculation
Whether spoliation determination from prior appeal precluded trial court reconsideration on remand	Sheats: prior ruling meant Kroger should have anticipated litigation	Kroger: remand required application of Phillips factors; prior opinion did not decide foreseeability outcome	Court: Prior opinion only required reconsideration under Phillips; trial court did so and its factual findings stand

Key Cases Cited

Phillips v. Harmon, 297 Ga. 386 (2015) (sets non-exclusive factors for constructive notice and duty to preserve evidence)
Sheats v. Kroger Co., 336 Ga. App. 307 (2016) (prior appeal vacating spoliation ruling and remanding for Phillips analysis)
Wright v. VIF/Valentine Farms Bldg. One, LLC, 308 Ga. App. 436 (2011) (appellate review defers to trial court findings on spoliation if supported by some evidence)
Bouve & Mohr, LLC v. Banks, 274 Ga. App. 758 (2005) (trial court findings on spoliation upheld when supported by evidence)
Wal-Mart Stores, Inc. v. Lee, 290 Ga. App. 541 (2008) (discusses deferential standard of review for spoliation determinations)