Hayward v. Kroger Co.

733 S.E.2d 7, 317 Ga. App. 795, 2012 Fulton County D. Rep. 2986, 2012 WL 4711441, 2012 Ga. App. LEXIS 817
CourtCourt of Appeals of Georgia
DecidedOctober 4, 2012
DocketA12A0877
StatusPublished
Cited by20 cases

This text of 733 S.E.2d 7 (Hayward v. Kroger Co.) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Hayward v. Kroger Co., 733 S.E.2d 7, 317 Ga. App. 795, 2012 Fulton County D. Rep. 2986, 2012 WL 4711441, 2012 Ga. App. LEXIS 817 (Ga. Ct. App. 2012).

Opinion

Andrews, Judge.

On appeal from the trial court’s grant of summary judgment to The Kroger Company in this rainy-day slip-and-fall case, plaintiff Frances Hayward argues that the trial court erred in its handling of witness affidavits when it denied her motion to compel production of a videotape and photographs of the accident scene, and when it concluded that no question of material fact remained on the merits of her claim. We find no error and affirm.

On appeal from a grant of a motion for summary judgment, we review the evidence de novo, viewing it in the light most favorable to the nonmovant, to determine whether a genuine issue of fact remains and whether the moving party is entitled to judgment as a matter of law. Rubin v. Cello Corp., 235 Ga. App. 250 (510 SE2d 541) (1998).

So viewed, the record shows that at approximately 1:00 p.m. on a Sunday following several days of rain, including that morning, Frances Hayward walked through a first set of double doors at the entrance to a Kroger supermarket in Stone Mountain. Hayward, who [796]*796was 78 years old and wearing high-heeled demi-boots, noticed that the foyer between the first and the second sets of double doors was damp. As she walked toward the second set of doors, she slipped and fell, suffering injury.

Kroger’s wet floor policy, which store manager Stella Rodriguez knew of and was responsible for implementing, included the following general directives as to spills and wet floors: (1) “Never leave the area unattended and verbally warn those nearby of the hazard”; (2) “Block off the area if no other associate is around” (emphasis omitted); (3) “Place caution signs around the perimeter of the wet area so they are visible from all directions to warn every customer”; and, as applicable to inclement weather, the further directives: (4) Place rugs “at all entrance doors and other appropriate front-end areas”; (5) “Keep a mop and bucket at the front end and aggressively clean up excess water”; and (6) “Swap out wet rugs with dry rugs as necessary.” Rodriguez testified that because it had been raining for days, it was wet everywhere outside resulting in tracked-in water and that, in accordance with Kroger policy, she had placed caution signs just outside the first set of doors and at least one sign just outside the second set of doors. Although Hayward testified that she did not see any mats or caution signs upon entering the store, photographs taken at the scene show Hayward’s lower body lying on a mat as well as caution signs placed in front of both sets of doors.

Rodriguez testified that she had replaced the usual entranceway mats with a longer produce mat laid lengthwise between the sets of doors. Rodriguez also testified that she had replaced the produce mat between the two sets of doors with a dry one at one point during the morning and had mopped the floor periodically. And while Rodriguez testified that only one other person was helping her monitor the front entrance on that day, her assistant manager, Deborah Klein, filed an affidavit in which she stated that she had assisted Rodriguez in placing entranceway mats in and outside the front entrance, that they had replaced a long produce mat “at least once” before Hayward fell, and that she, Rodriguez, and another employee had mopped the front entrance “as often as every ten to fifteen minutes because of customer traffic and the wet shopping carts moving in and outside the store.”

1. Hayward first argues that the trial court abused its discretion when it (a) denied her motion to strike Klein’s affidavit, and (b) granted Kroger’s motion to strike the affidavits of her expert witness, Rosanne Masone, concerning Kroger’s safety procedures. We disagree.

[797]*797We review a trial court’s decision on a motion to strike only for an abuse of discretion. See CNL APF Partners v. Dept. of Transp., 307 Ga. App. 511, 513 (2) (705 SE2d 862) (2010).

(a) The record shows that Kroger identified assistant manager Klein as a potential witness in the course of discovery and before manager Rodriguez’s deposition. The fact that Kroger filed Klein’s affidavit after both Rodriguez’s deposition and the filing of expert witness Masone’s affidavits does not authorize a conclusion that the trial court abused its discretion when it concluded that Kroger properly identified Klein “in response to all applicable discovery requests.” See CNL APF Partners, supra at 513 (2) (affirming denial of motion to strike).

(b) Hayward tendered the Masone affidavits as an expert in risk management for grocery stores generally, which Hayward argues is a “profession shrouded in the mystery of professional skill and knowledge.” See Fordham v. State, 254 Ga. 59, 60 (4) (325 SE2d 755) (1985); OCGA § 24-9-67.1 (a), (b) (setting out criteria for admission of expert testimony). On the contrary, and as the trial court held, Masone’s testimony was not necessary on the question of whether Kroger’s procedures were adequate to meet the common problem of accumulated rainwater at the entrance to a store during rainy weather. Colbert v. Piggly Wiggly Southern, 175 Ga. App. 44, 45 (1) (322 SE2d 304) (1985); see also Bailey v. Annistown Road Baptist Church, 301 Ga. App. 677, 689-690 (12) (689 SE2d 62) (2009) (that rainwater soaks into the earth and can erode soil did not require expert testimony). Moreover, the affidavits as conclusory and unsupported by factual evidence were insufficient to avoid summary judgment. “Nothing in Daubert [v. Merrell Dow Pharmaceuticals, 509 U. S. 579 (113 SC 2786, 125 LE2d 469) (1993)] or [OCGA] § 24-9-67.1 ‘requires a trial court to admit opinion evidence which is connected to existing data only by the ipse dixit of the expert.’ ” (Citation and punctuation omitted.) HNTB Ga., Inc. v. Hamilton-King, 287 Ga. 641, 644 (1) (697 SE2d 770) (2010). Accordingly, there was no abuse of discretion in the trial court’s grant of Kroger’s motion to strike these affidavits as more prejudicial than probative.

2. Hayward argues that the trial court abused its discretion when it denied the portion of her motion to compel concerning a videotape and original photographs of the scene. We disagree.

“The trial court’s discretion in dealing with discovery matters is very broad, and this court has stated on numerous occasions that it will not interfere with the exercise of that discretion absent a clear abuse.” (Citation and punctuation omitted.) Reeder v. Gen. Motors Acceptance Corp., 235 Ga. App. 617, 620 (3) (510 SE2d 337) (1998).

[798]*798The record shows that Hayward filed a motion to compel answers to four of her interrogatories and five of her requests for production, including videotapes of the store entrance on the date of the accident. The motion to compel did not seek review of Kroger’s response to Hayward’s request for photographs, however. The record also shows that although Kroger could not locate the originals of the photographs, it had produced at least two copies of them before Hayward brought her motion to compel. The trial court granted the motion only as to two interrogatories and a request concerning incident reports. Kroger complied with the court’s order, and Hayward did not take any further action concerning these discovery requests.

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733 S.E.2d 7, 317 Ga. App. 795, 2012 Fulton County D. Rep. 2986, 2012 WL 4711441, 2012 Ga. App. LEXIS 817, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hayward-v-kroger-co-gactapp-2012.