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The Kroger Co. v. Walters

Because the trial court admitted evidence of spoliation and the defendant grocery store's manipulation of the video surveillance tape that may or may not have captured the slip and fall incident, it abused its discretion in granting the plaintiffs' motion to prohibit the grocery store from calling a witness regarding the re-aiming of the video camera, since his testimony was also relevant to spoliation and manipulation.

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Craig and Lisa Walters brought this slip-and-fall action against The Kroger Company. During discovery, the trial court struck Kroger’s answer on the ground that Kroger had spoliated evidence and acted in bad faith, thereby precluding Kroger from introducing evidence at trial to contest its negligence. The case went to trial on causation, damages, and attorney fees. Walters, age 48 at the time of the fall, 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 appeals and claims six errors, primarily related to the issues of spoliation, litigation expenses, and damages. We affirm the ruling on spoliation but reverse the judgment because the trial court erroneously excluded material evidence at trial.

1. Kroger first challenges the court’s pretrial decision to strike Kroger’s answer on the ground of spoliation. “Spoliation refers to the destruction or failure to preserve evidence that is necessary to contemplated or pending litigation.” Citation and punctuation omitted. Silman v. Assocs. Bellemeade, 286 Ga. 27, 28 685 SE2d 277 2009.”Where a party has destroyed or significantly altered evidence that is material to the litigation, the trial court has wide discretion to fashion sanctions on a case-by-case basis.” Citation omitted. AMLI Residential Properties v. Ga. Power Co., 293 Ga. App. 358, 361 1 667 SE2d 150 2008. A trial court’s decision imposing sanctions for spoliation is reviewed for abuse of discretion. Wal-Mart Stores v. Lee, 290 Ga. App. 541, 546 1 659 SE2d 905 2008.

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