Cengage Advantage Books: Foundations of the Legal Environment of Business 3rd Edition by Marianne Jennings

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Kroger Co. v. Walters 735 S.E.2d 99 (Ga. App. 2012)
A Slip on the Banana Video
Facts
On May 25, 2008, Craig Walters slipped and fell on a piece of banana in the meat department of a Kroger store and landed on his left hip and left elbow. Initially, Walters did not experience pain or other symptoms. Peyton Kelley, the store co-manager, came to the scene, and described the cause of the fall as something "mushy" and smelling like banana. Kelley spoke with Walters and a customer who witnessed the fall. Kelley asked Walters if he was okay, and Walters replied that he appeared to be fine. But Kelley also remembered that Walters said he was a little sore, and Kelley noticed that Walters was limping. Walters gave Kelley his name and resumed shopping. When Walters got in his car to go home, he began to experience unusual symptoms, including tingling in his toes, numbness in his legs, and, eventually, loss of balance, which grew worse over time.
In the meantime, Kelley followed Kroger's procedure to investigate every such incident. Kelley spoke to store employees, including the employee nearest to the fall. He also downloaded from a company website a six-page "Customer Incident Report Investigation Check List," which he completed, partially that day and partially thereafter, based on his notes from the day of the incident, including a diagram of where Walters fell. That diagram is marked as having been drawn on May 25, and every page of the customer incident report, including the diagram, states that it was made "in anticipation of litigation under the direction of legal counsel."
Kelley reviewed video from the security cameras located in the vicinity of the fall, including camera 17, the camera closest to that area. The cameras' hard drives retain their video for 17 days but are then erased and reused; to retain a video for a longer time, one must transfer the file to a CD or DVD. Store policy dictated that if the video covered the area of the fall, it should be retained. After viewing the video captured at the time of the fall, Kelley decided not to save any video despite the company policy. He testified that none of the cameras captured the incident. He did not know why he did not make a copy, and that he could not be sure the system was actually working at the time. Kelley admitted that, in addition to the fall itself, the videos might have shown when the store aisles were inspected, how and when banana came to be on the floor in the meat department, and whether any store employees were in the vicinity of the fall. Kelley also testified that if he had looked at the video, he should have recorded his findings in the incident report, yet the report does not reference any video.
Walters first saw an orthopedist on July 3, 2008. On July 9, 2008, more than 17 days after the fall, Walters again spoke to Kelley and reported having problems with his back and legs beginning a month after the fall; he also stated that he needed help with his medical bills.
Walters and his wife filed suit on March 6, 2009. Kroger produced exemplar video (taken from each camera on January 7, 2010), showing each camera's field of view, and camera 17 did not point directly at the place where Walters fell. On August 3, 2010, store manager Harry Turner testified that none of the indoor cameras had been re-aimed, including camera 17, since he began managing the store in 2004 and that the cameras could not be moved electronically; rather, a person would have to climb a ladder to adjust them. Following a discussion among the lawyers, the live feed was shown, and it was discovered that the camera was not pointed in the same direction as the exemplar and that, instead, the camera pointed directly at the location of Walters's fall.
Walters filed a motion for sanctions, and the court entered an order finding that Kroger had destroyed the video from the date and time of the incident by not preserving it. The case went to trial and Walters was able to show the fall caused a severe spine injury that required surgery and resulted in a lifelong disability. A jury awarded $1,689,456 in damages and $675,782.40 in attorney fees. Kroger appealed challenging the spoliation ruling.
Judicial Opinion
BRANCH, Judge
The evidence outlined above shows that the court's factual findings are supported by some evidence in the record.
Kroger argues, however, that the court's order cannot be sustained because the facts fail to show it had notice at the time the video was erased that Walters was contemplating litigation, as is required in spoliation cases. And some evidence supports the trial court's conclusion that during discovery Kroger submitted a false exemplar from camera 17, from which an inference could arise that Kroger knew the original video should not have been deleted.
The video might have established either actual or constructive knowledge by Kroger of a foreign substance on the floor. The exemplar video showed the general area but not the exact location of the fall, but that the subsequent deposition revealed that the camera was "centered on the exact location of Walters' fall and not the location shown in the prior images produced by Kroger and could have clearly shown the exact conditions at the time of Walters' fall and whether Kroger employees knew or should have known of the dangerous condition in that area." The court concluded that Kroger had spoliated the video evidence, which could have been maintained at minimal expense; that the spoliation prejudiced Walters; and that Kroger "acted in bad faith in failing to preserve the evidence and manipulating evidence to excuse its actions." The facts taken as a whole are sufficient to support the trial court's findings
In sum, we find no abuse of discretion in the trial court's finding of spoliation. Reversed on other grounds.
Case Questions
1. What does the court say the Kroger manager should have done and why?
2. What general rules would you develop for store managers based on this case?
3. What should plaintiffs who are injured learn from this case?
3. What should plaintiffs who are injured learn from this case?