A Gwinnett County State Court jury last week awarded $2.3 million to a man who was hurt slipping in a Kroger grocery, which saw its defense struck after a judge concluded the company destroyed a video of the accident.
Gwinnett County State Court Judge Joseph C. Iannazzone ruled in December that Kroger “spoliated evidence” and “acted in bad faith in failing to preserve the evidence and manipulating evidence to excuse its actions.”
As a result of the spoliation order, the three-day trial was for damages only. And the judge’s bad faith ruling allowed the plaintiff to ask for litigation expenses, for which the jury awarded $675,782.40.
The jury also awarded $700,000 for future pain and suffering, $200,000 for past pain and suffering, $477,496 for future lost wages, $77,083 for past lost wages, $100,000 to the plaintiff’s spouse for loss of consortium and $134,877 for past medical expenses, according to the final judgment, entered Jan 20.
“We are very pleased with the jury’s verdict,” said plaintiff’s attorney Lloyd N. Bell of the Bell Law Firm, who tried the case along with Bruce Berger of the Berger Law Firm. “It is unfortunate that Kroger chose to drag my client and his family through three years of brutal and exhausting litigation, rather than owning up to its misconduct.”
Defense attorney Douglas A. Wilde, a solo practitioner based in Tyrone, referred a call for comment to Glynn Jenkins, director of communications and public relations for the Atlanta division of The Kroger Co. Glynn responded with the following statement: “The safety of our customers is important to Kroger. We are sorry that Mr. Walters had an unfortunate experience in one of our stores. However, we disagree with some of the decisions made in the recent trial and are currently evaluating our future course of action.”
Plaintiff Charles Craig Walters Jr. has been unable to work since the fall in May 2008, Bell said. At the time, Walters was a 49-year-old landscaper shopping with his teenage daughter.
The judge’s spoliation order said Walters “alleges that he was looking for hot dogs near the rear of the store in the meat department when he began to slide and fell to the floor.” When Walters got up, he observed a “little pile of goo” on which he had slipped, the order said. Kroger manager Peyton Kelley arrived, and then an unidentified customer wiped up the substance and determined it was a banana.
Half an hour later, the store manager said he observed a woman checking out who had a baby in a shopping cart eating a piece of banana, the order said: “It is Kelly’s belief that the baby had dropped the piece of banana on which Walters had slipped.”
The importance of the video was to show when the spill happened and how long it remained on the floor before Walters slipped on it, as well as whether any Kroger employees had reason to know about it. “Walters argues that the spoiled video could have shown that Kroger created the hazard,” the judge’s order stated. The judge noted that spoliation creates a “presumption against the spoliator that the evidence favored the spoliator’s opponent. The video might have established either actual or constructive knowledge by Kroger of a foreign substance on the floor.”
Also, Kroger maintained the video would not have mattered because the camera was not pointed to the exact spot where Walters fell. The defense later produced a “sample video” from the camera in the area showing that Walters’ fall would not have been in the picture.
But during a deposition at the store, plaintiff’s lawyers asked the manager to show them the live video feed from the same camera on his computer. “Although the manager had sworn just moments before that the video camera had never been moved since the store opened in 2004, when he pulled up the live video, we saw it was pointing to the exact location of the fall,” Bell said. The plaintiffs alleged that the camera must have been moved to create the sample video and then moved back.
“We couldn’t believe it. The camera had obviously caught everything that had happened-when the fruit fell to the floor, how long it was there, Walters’ slipping and falling on it-and they deliberately erased it, lied to us and gave us a phony sample of video footage,” said Bell. The plaintiffs filed a motion to strike the defendant’s answer as a sanction, which the judge granted.
Kroger’s attorney argued that Walters’ back problem was not caused by the fall but by “pre-existing degenerative and or congenital conditions and not by any act or omission of the defendant,” according to the defense outline in the consolidated pretrial order.
Another point for the defense was that Walters did not call an ambulance or seek immediate medical care. Bell said his client told his daughter when he got to their car that his legs didn’t feel right and his toes were tingling. But he waited two weeks to call his orthopedist, who had a three-week wait for appointments.
However, it happened that the plaintiff had seen his orthopedist three days before the fall for work-related shoulder pain. The plaintiff’s attorneys were able to introduce evidence from that appointment showing that Walters reported no neck or back pain. “He had a good baseline,” Bell said.
Jurors were qualified to make sure they had no conflicts with three insurers for Kroger: Ace American Insurance Co.; Illinois Union Insurance Co.; and Factory Mutual Insurance Co.
The defense objected unsuccessfully to qualifying the jury on Illinois Union and Factory Mutual, which Bell said carry excess verdict coverage for the grocery store chain. Bell said he believes Kroger covers the first $1 million and that Ace covers the next $3 million. Mentioning all three insurers during voir dire could be perceived as a hint to the jury of how much coverage is available to the defendant, but Georgia law requires that they be named.
The case is Walters v. Kroger, No. 09-C-14740-S4.