Powers v. Southern Family Markets of Eastman, LLC.

740 S.E.2d 214, 320 Ga. App. 478, 2013 Fulton County D. Rep. 807, 2013 WL 1092838, 2013 Ga. App. LEXIS 212
CourtCourt of Appeals of Georgia
DecidedMarch 18, 2013
DocketA12A2382
StatusPublished
Cited by10 cases

This text of 740 S.E.2d 214 (Powers v. Southern Family Markets of Eastman, LLC.) 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.

Bluebook
Powers v. Southern Family Markets of Eastman, LLC., 740 S.E.2d 214, 320 Ga. App. 478, 2013 Fulton County D. Rep. 807, 2013 WL 1092838, 2013 Ga. App. LEXIS 212 (Ga. Ct. App. 2013).

Opinion

Ray, Judge.

After Sylvia Powers slipped and fell in a Piggly Wiggly grocery store owned and operated by Southern Family Markets of Eastman, LLC (“Southern”), she filed a complaint for damages against Southern in the Superior Court of Dodge County.1 Prior to trial, Powers filed a motion for sanctions based on alleged spoliation of video evidence and a motion to compel discovery. After oral argument, the trial court denied Powers’ spoliation motion and entered an order resolving the discovery disputes. The trial court also granted Southern’s motion in limine prohibiting both parties from making any argument or eliciting any testimony concerning the alleged spoliation of video evidence. Following a jury trial, the jury returned a verdict in favor of Southern. Powers appeals, contending the trial court erred (1) in denying her motion regarding spoliation of the video evidence and (2) in excluding all testimony regarding such evidence. In addition, Powers contends the trial court erred in its ruling on her motion to compel discovery. For the reasons explained below, we affirm.

The evidence shows that, on May 27, 2008, Powers went into the Piggly Wiggly store to shop for groceries. After paying for her selected items, Powers was attempting to exit the store when she slipped and fell. Although Powers testified that she did not see anyone mopping the floor prior to her fall, an employee of Dimitrov’s Cleaning Service, an independent contractor, had been cleaning the floors in the vicinity where Powers fell. When the store manager, Mike Law, responded to the incident, he observed two “wet floor” signs and a mop machine in the area where Powers had fallen. When he asked Powers what had happened, she told him that she knew the floor was wet, and she stated that she thought she would be okay and that she did not need any medical assistance. After Powers walked out of the store, Law went back to his office and signed an incident report, which he is required to do in the ordinary course of business whenever a slip and fall occurs. It was Law’s responsibility to perform investigations and gather information concerning incidents that occurred in the store. As a part of his investigation of this case, Law drew a diagram of the incident and took pictures of the area where the incident occurred.

[479]*479After his initial investigation, Law reported the incident to Southern’s risk manager, Gina Vitello, and Southern’s third-party administrator, just as he was required to do with any type of incident that occurs on store property. In turn, the third-party administrator contacted Powers as a customer service to ensure that she was okay and to follow up on the initial investigation of the incident. During this follow-up interview, there was no indication of contemplated litigation, nor was there any indication that Powers would be seeking legal counsel or otherwise attempting to take legal action against Southern. As a result, Law did not take any affirmative steps to preserve any video from the day of the incident, and the store video was ultimately recorded over, as would normally occur with any other video footage at the store.

On August 22, 2008, approximately three months after the incident, Southern received notice of contemplated litigation when it was contacted by Powers’ attorney. However, by this time the store’s video footage from the day of the incident no longer existed.

Approximately nine months after the incident, Powers filed suit. As a part of her written discovery requests, Powers asked Southern to produce a copy of any video recording of the store from the day of the incident. In response, Southern stated that it did not have possession, custody, or control of any video recording of the incident. Thereafter, Powers filed her motion for sanctions for spoliation of evidence.

1. Powers contends that the trial court improperly denied her motion regarding spoliation of evidence, arguing that the trial court erred in finding that “because no litigation was contemplated or pending when the tape was recorded over or otherwise not preserved, ... no spoliation of evidence occurred.” We find no merit in this contention.

The trial court has wide discretion in resolving spoliation issues, and we will not disturb its ruling absent abuse.2

“[S]poliation refers to the destruction or failure to preserve evidence that is necessary to contemplated or pending litigation.”3 However, this Court has held:

[NJotice of potential liability is not the same as notice of potential litigation. To meet the standard for proving spoliation, the injured party must show that the alleged tort[480]*480feasor was put on notice that the party was contemplating litigation. The simple fact that someone is injured in an accident, without more, is not notice that the injured party is contemplating litigation sufficient to automatically trigger the rules of spoliation.4

As stated above, the trial court found that Southern did not have notice that Powers was contemplating litigation when the video was recorded over or otherwise not preserved. Citing Baxley v. Hakiel Indus.,5 Powers contends that Law’s actions in completing the incident report, taking pictures, and drawing a diagram of the incident scene immediately after the accident demonstrate that Southern was anticipating litigation. However, this contention is not supported by the record.6 Although the standardized incident form that Law signed contained pre-printed language that the report was “prepared in anticipation of litigation,” Law’s testimony reflects that, at the time he completed the incident report, he thought that Powers was unharmed and did not believe that her fall might lead to litigation. The evidence further shows that Law’s actions in investigating and reporting the incident were matters of routine practice that he was required to follow when any slip and fall occurred on the premises. Furthermore, we have held that the mere contemplation of potential liability and the completion of an accident report after an investigation do not demonstrate contemplated or pending litigation.7

Under these circumstances, we cannot say that the trial court abused its discretion in finding that Southern had no notice that litigation was contemplated or pending at the time the video was not preserved and, thus, that no spoliation occurred.8

2. Powers also contends that the trial court erred by not allowing her to question Law at trial about why he did not save the video from the day of the incident. We disagree.

[481]*481“We review a trial court’s ruling on a motion in limine for abuse of discretion. A motion in limine is properly granted when there is no circumstance under which the evidence under scrutiny is likely to be admissible at trial.”9

In light of its ruling that no spoliation of evidence occurred in this case, the trial court granted Southern’s motion in limine, prohibiting both parties from arguing or eliciting testimony regarding the prior availability or the absence of video evidence from the day of the incident.

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Cite This Page — Counsel Stack

Bluebook (online)
740 S.E.2d 214, 320 Ga. App. 478, 2013 Fulton County D. Rep. 807, 2013 WL 1092838, 2013 Ga. App. LEXIS 212, Counsel Stack Legal Research, https://law.counselstack.com/opinion/powers-v-southern-family-markets-of-eastman-llc-gactapp-2013.