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Click here for the full text of this decision FACTS:In 1999, Dorothy Fethkenher was struck by an automatic door in a Granbury Kroger grocery store. Though she treated her head and hand injuries at home that night, eventually she required surgery to eliminate the pain and other problems in her hand and arm. Fethkenher sued Kroger for her injuries. During the course of contentious discovery proceedings, Fethkenher asked Kroger to produce information on “any previous incidents pertaining to automatic door malfunction at The Kroger Co. stores during the last ten (10) years, from 1989 to 1999.” Kroger balked at the request because it has over 2,500 stores nationwide and it has a two-year document retention policy, so it couldn’t comply fully with the request if it wanted to. At a hearing on Fethkenher’s motion to compel, the trial court narrowed the request to apply only to the store where Fethkenher was injured, and only dating back three of four years, to the time the door was installed. The trial court declined Fethkenher’s request to expand the limitation ruling to include 188 stores in the region. Continuing with their contentions discovery battles, Kroger asked the trial court to impose sanctions on Fethkenher’s attorney for refusal to produce Fethkenher for deposition, refusal to agree on a proposed order in response to a previous motion to compel, refusal to non-suit a party as promise and refusal to confer with Kroger’s attorney on another motion to compel. At the hearing on the sanctions motion, Kroger also alleged that Fethkenher �s attorney had misrepresented to the court and Kroger that she had a court conflict in Dallas County at the same time as the sanctions hearing. Fethkenher’s attorney explained that she was on one-hour standby for trial in Dallas and that she had not been called. The trial court granted Kroger’s motion and sanctioned Fethkenher’s attorney $1,500. At a trial on the merits, the jury was charged with determining whether the negligence of either or both parties proximately caused the occurrence. The trial court included additional instructions, which included a statement that an “owner or occupier of a premises is not an insurer of the safety of its invitees,” and that “an occurrence may be an �unavoidable accident,’ that is, an event not proximately caused by the negligence of any party to it.” Also, the court said that in order to establish that Kroger reasonably should have known about any danger, “there must be some proof of how long the hazard existed prior to the incident in question.” The jury ruled for Kroger that Fethkenher take nothing, and Fethkenher appeals. HOLDING:Affirmed in part; reversed and rendered in part. On appeal, Fethkenher argues that the trial court erred in limiting her discover on the automatic door at other Kroger stores. The trial court should have allowed the narrower request she offered, she continues. But, the court rules that Fethkenher still failed to narrow the scope of the request in a manner that would heighten its relevancy. That is, she did not mention a specific type of door. Instead, as written, Fethkenher’s request “appears to be a �fishing expedition’ for information regarding potential problems with automatic doors in general.” Furthermore, the request is unduly burdensome, the court holds. Fethkenher next argues that the jury charge included unnecessary and impermissible instructions. First, she argues that the “not an insurer” language was an improper comment on the weight of the evidence. The court, however, agrees with Kroger, that Fethkenher’s argument on appeal does not match her objection to the charge at trial. At trial, she complained that the statement was an incorrect statement of law and was not intended as a pattern jury charge. Consequently, the court overrules this point of error. Next, Fethkenher argues that the “unavoidable accident” jury charge. The court confirms that Fethkenher’s objection at trial matches her argument on appeal, and that the instruction is proper only when there is evidence that the event was proximately caused by a nonhuman condition and not by the negligence of any party to the event. Reviewing the record, the court finds no evidence that the door’s malfunction was proximately caused by a nonhuman event. Consequently, the trial court’s instruction on unavoidable accident was in error. The error is not reversible, however, because it did not likely cause the rendition of in improper judgment. Liability was not closely contested, and the jury, in rendering a unanimous verdict of no liability against Kroger, did not ask any questions about the instruction or its role in their deliberations. Third, Fethkenher argues that the “time of hazard” instruction was prejudicial and improper, but the court again finds two of her three arguments on appeal different from what was presented at trial, and the third argument is inadequately briefed. The court does, however, reverse the sanctions ruling imposed against Fethkenher’s attorney. Only two of the allegations made by Kroger are subject to sanctions under T.R.Civ.P. 215.1(d) or 215.2(b): the alleged failure to produce Fethkenher for deposition and the failure to respond to two letters asking for supplemental discovery responses. The allegations arose amidst “a contentious working relationship,” marked by “a pattern of uncooperative behavior . . . from both sides.” Although it is “obvious” that the parties were unable to conduct discovery without the trial court’s intervention and that Fethkenher’s attorney was uncooperative in scheduling Fethkenher for deposition, the sanction was excessive in this case. The trial court could have first levied a less severe sanction, such as ordering Fethkenher’s deposition for a specific date. OPINION:Dixon W. Holman, J.; Holman, Gardner and Walker, JJ.

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