What happens when the defense attorney stands up and basically tells the Court, “Judge, we can’t find the tape”. We learn what happens in the Georgia case of Walters v Kroger Co. Watergate meets slip-and-fall. (The following case description is based on an article from AAJ’s “Trial” magazine)
Craig Walters was shopping in a Kroger supermarket, when he slipped on a piece of banana. As a result of his fall, he suffered a spinal cord compression that required surgery. He had multiple rods and screws inserted to stabilize his spine.
His past medical expenses totaled $135,000. He will have continuing issues including permanent disability. He will never again be able to work as a commercial landscaper, where he had a yearly average income of about $50,000.
When Walters sued the store, he claimed that they had failed to take the necessary steps to inspect and remove the fruit from the floor.
During discovery, it was determined that the store had a surveillance video system in operation, where Walters had fallen. So, a discovery request was sent for a copy of the store’s surveillance recording of the fall. The Kroger manager responded that they had not kept the video, because it did not capture the fall. Instead, the store produced a photograph with the claim that this was the only image that they had; a wide view of the general area of the incident.
When Walters’ attorney took the deposition of the store manager, he asked the manager to demonstrate how the surveillance system operated. The demonstration showed that the surveillance camera was centered on the spot where Walters had fallen, not on the location of that other image that had previously been produced.
The plaintiff filed a motion, seeking sanctions and claiming that Kroger had deliberately erased footage of the fall. The Court made a determination that the store had deliberately destroyed evidence. The Judge ordered a sanction; the store would not be allowed to present any defenses to being at fault for the fall.
The case proceeded to the jury on damages only. The jury returned a verdict of $2.3 million. Kroger has now filed an appeal, based on the Court’s sanction.
Sometimes, a Judge may just give an instruction on the destruction of evidence and that it should be presumed that the evidence that was destroyed, would have been favorable to the opposing party. In this instance, this Judge brought the hammer down. It will be determined on appeal if the Judge’s ruling will now stand.
For pic o’ day, here’s another bad idea: