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Store Video Helps Kroger Win Defense Verdict in Slip-Fall Case

The Plaintiff's claim that employee was told of water spill wasn't supported by video

, Daily Report

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Kroger's defense team consisted of, from left, Rick Hill, Billy Gunn and Derrick Cooper.Gunn
Kroger's defense team consisted of, from left, Rick Hill, Billy Gunn and Derrick Cooper.

After losing a string of slip-and-fall cases over the past two years—some with sanctions for failure to preserve security camera video recordings—the Kroger Co. has won a defense verdict in a premises liability trial in Gwinnett County State Court.

In this case, a store video recording of the incident was used to the store's advantage. During four hours of deliberation, the jury asked to view the video three more times, according to defense attorney Earl W. "Billy" Gunn, who tried the case with Richard "Rick" Hill and Frederick "Derrick" Cooper, all of Weinberg, Wheeler, Hudgins, Gunn & Dial. The case was tried in three days before Gwinnett County State Court Judge Emily Brantley, starting Nov. 19.

Gunn said he told the jurors in closing that "in order to find for the plaintiff, they had to believe that every Kroger employee and me, Derrick and Rick all conspired to present perjured testimony. I told them I wouldn't commit a felony just on a fee."

The video showed that on June 1, 2011, an unidentified customer put a leaking gallon jug of water into a trash can near the self checkout area of a Stone Mountain Kroger store. The woman returned to finish her checkout. The next person who walked through that area was the plaintiff, Tyla Calderwood, who slipped and fell 28 seconds after the spill occurred, according to the defense attorneys.

Calderwood sustained a "serious neck injury" that required surgery, according to the plaintiff's portion of the consolidated pre-trial order. She asked for a total of $94,000 in special damages—$86,000 in medical bills and $8,000 in lost wages—plus more money for pain and suffering.

The plaintiff's team—Lloyd Bell of the Bell Law Firm and Bruce Berger of the Berger Law Firm—had a different interpretation of the video. They thought the unidentified woman who spilled the water told the self-scan clerk about it. The lawsuit alleged that since the clerk didn't go straight to the spill to clean it up, she violated Kroger's policy and made the store negligent and liable for the incident.

But at trial, the clerk testified she was never told about the spill. The woman who spilled the water couldn't be identified or located by either team of lawyers. Because the recording did not include sound, it was unclear whether words were spoken.

"The question was, did the customer notify the you-scan clerk," said Bell. "The jury determined we couldn't meet our burden."

It was a tough case for the plaintiff, Bell said, more so than another one he tried against Kroger the month before in DeKalb County. In the October DeKalb case, also about slipping on a puddle of water, the company preserved some of the video but not all of it. The portion not preserved would have shown whether or not store personnel performed the regular floor sweep required by company policy. As a spoliation sanction for the evidence not preserved, DeKalb County State Court Judge Alvin Wong ordered the jury to presume harm to the defense. In that case, the jury reached a verdict for the plaintiff on Oct 18. and awarded $130,000.

In other Kroger premises liability cases covered by the Daily Report over the past two years, plaintiffs won: $2.79 million for slipping on water near the flower section; $2.3 million for slipping on a banana; and $750,000 for slipping on pineapple ice cream topping. The $2.79 million verdict was upheld by the Georgia Court of Appeals last month. On the $2.3 million verdict, Kroger won a new trial. But in the second trial this April, the plaintiff won $2 million. In some of those cases, the company was sanctioned for failing to preserve video evidence.

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