Paggett v. The Kroger Co.

The plaintiff was not entitled to a spoliation presumption that a surveillance video of the gas station where he slipped and fell would have been harmful to the defendant, as the defendant did not have notice that the plaintiff was contemplating litigation when it destroyed the recording.

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On September 11, 2009, Glenn Paggett slipped and fell while getting out of his vehicle at a gas station owned by The Kroger Company. Paggett brought an action for negligence against Kroger. The trial court granted Kroger’s motion for summary judgment, concluding that there was no evidence of a dangerous condition at the gas station and determining that Paggett was not entitled to a spoliation presumption based on Kroger’s inability to produce a surveillance videorecording of the gas station on the day of the fall. Finding no error in the trial court’s ruling, we affirm. 1. Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. Hutto v. CACV of Colo., LLC , 308 Ga. App. 469 707 SE2d 872 2011. In premises liability cases, summary judgment is granted only when the evidence is plain, palpable, and undisputed. Dickerson v. Guest Servs. Co. of Va. , 282 Ga. 771-772 653 SE2d 699 2007. We review the grant or denial of summary judgment de novo, construing the evidence in favor of the nonmovant. Hutto , supra.

So viewed, the evidence shows that it had rained on the day of the fall, but at the time of the fall the rain had stopped. Paggett, accompanied by his wife, pulled next to a pump at the gas station. He did not see any liquid on the pavement. As he got out of the vehicle, however, his “left leg hit some kind of foreign substance or something and it slipped out from under him,” causing him to fall to the ground. He deposed: “When I slipped in it, I felt kind of wet, you know, behind and . . . the back of my head, but I didn’t really examine what it was. All I know, whatever it was was slippery.” After the fall, Paggett’s clothing was wet. He did not determine the nature of the substance that had made his clothing wet, and neither he nor his wife inspected the ground to determine what had caused his fall. A Kroger manager called to the scene shortly after the fall, however, deposed that Paggett had fallen in rainwater.

Paggett v. The Kroger Co.

The plaintiff was not entitled to a spoliation presumption that a surveillance video of the gas station where he slipped and fell would have been harmful to the defendant, as the defendant did not have notice that the plaintiff was contemplating litigation when it destroyed the recording.

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