Nicole Westmoreland v. Walgreen Co. ( 2021 )

FIFTH DIVISION
RICKMAN, C. J.,
MCFADDEN, P. J., and SENIOR APPELLATE JUDGE PHIPPS
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
https://www.gaappeals.us/rules
DEADLINES ARE NO LONGER TOLLED IN THIS
COURT. ALL FILINGS MUST BE SUBMITTED WITHIN
THE TIMES SET BY OUR COURT RULES.
December 1, 2021
In the Court of Appeals of Georgia
A21A1753. WESTMORELAND v. WALGREEN CO.
MCFADDEN, Presiding Judge.
In this premises liability action, Nicole Westmoreland appeals the grant of
summary judgment to Walgreen Co., which does business as Walgreens.
Westmoreland has failed to point to admissible evidence creating a jury question on
the issue of whether Walgreens had superior knowledge of the instrumentality that
allegedly caused her injury. So we affirm.
A trial court may grant summary judgment when there is no genuine issue as
to any material fact and the moving party is entitled to a judgment as a matter of law.
OCGA § 9-11-56 (c). A defendant may demonstrate that it is entitled to summary
judgment “by either presenting evidence negating an essential element of the
plaintiff’s claims or establishing from the record an absence of evidence to support
such claims.” Cowart v. Widener, 287 Ga. 622, 623 (1) (a) (697 SE2d 779) (2010)
(citation and punctuation omitted). Once the defendant has met this burden, the
plaintiff “must point to specific evidence giving rise to a triable issue” or suffer
summary judgment. Id. (citation and punctuation omitted).
“We review the grant or denial of a motion for summary judgment de novo, and
we must view the evidence, and all reasonable inferences drawn therefrom, in the
light most favorable to the nonmovant.” Pennington v. Gwinnett County, 329 Ga.
App. 255 (764 SE2d 860) (2014) (citation and punctuation omitted).
So viewed, the record shows that Westmoreland intended to purchase a six-
pack of beer at a Walgreens store. As she was removing the package from the cooler,
bottles of beer fell through the bottom of the package. Some of the bottles broke when
they hit the floor, and glass from the broken bottles injured Westmoreland’s feet and
legs. The trial court granted Walgreens’s motion for summary judgment, and this
appeal followed.
Although “OCGA § 51-3-1 imposes upon an owner the duty to exercise
ordinary care to keep the premises and approaches safe for invitees[, the] duty is not
a duty to absolutely prevent injury as a proprietor is not an ensurer of the safety of its
customers.” Thomas v. Home Depot, U.S.A., 284 Ga. App. 699, 700 (644 SE2d 538)
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(2007). “The true ground of liability is the proprietor’s superior knowledge of the
perilous instrumentality and the danger therefrom to persons going upon the property.
It is when the perilous instrumentality is known to the owner and not known to the
person injured that a recovery is permitted.” Aubain-Gray v. Hobby Lobby Stores, 323
Ga. App. 672, 673 (1) (747 SE2d 684) (2013) (citation and punctuation omitted).
In support of its motion for summary judgment, Walgreens argued that it lacked
superior knowledge of the hazard that allegedly caused Westmoreland’s injuries. It
presented to the trial court the affidavit of the assistant store manager who testified
that he had worked at the store for 16 or 18 months, and that prior to and after the
incident involving Westmoreland, there had been no similar incidents.
To create a jury question on the issue of Walgreens’s superior knowledge,
Westmoreland relies on her own deposition testimony. At her deposition,
Westmoreland testified that a Walgreens employee told her that a similar incident had
happened just a week before and that the employee had informed Walgreens that the
cooler was too high. Westmoreland also testified that she overheard a Walgreens
employee tell another Walgreens employee that bottles fell out of the cooler “again.”
As Walgreens argues on appeal (and argued in the trial court), this testimony
was hearsay. OCGA § 24-8-801 (c). “All hearsay evidence, unsupported conclusions,
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and the like, must be stricken or eliminated from consideration in a motion for
summary judgment.” Goodhart v. Atlanta Gas Light Co., 349 Ga. App. 65, 72 (2) (a)
(825 SE2d 465) (2019) (citation and punctuation omitted). See also OCGA § 24-8-
802 (objected-to hearsay is not admissible). This hearsay does not create a question
of fact so as to support the reversal of the trial court’s grant of summary judgment to
Walgreens.
Westmoreland briefly argues that her deposition testimony could be admissible
under the excited utterance exception to the hearsay rule. But she has not shown that
the excited utterance exception could apply.
An excited utterance is “[a] statement relating to a startling event or condition
made while the declarant was under the stress of excitement caused by the event or
condition[.]” OCGA § 24-8-803 (2) (Rule 803). Westmoreland makes no argument
and points to no evidence to support her contention that the testimony is subject to
the excited utterance exception. Crucially, she points to no evidence “that show[s the
speakers were] actually experiencing stress or excitement at the time of [their]
statement[s] to [Westmoreland] so as to eliminate the possibility of fabrication,
coaching, or confabulation and provide sufficient assurance that the statement[s were]
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trustworthy and that cross-examination would be superfluous.” Jenkins v. State, 303
Ga. 314, 318 (2) (812 SE2d 238) (2018) (citation and punctuation omitted).
Westmoreland asserts that the statements may be adverse to the interest of
Walgreens, perhaps intending to invoke OCGA § 24-8-801 (d) (2), which provides
that admissions by a party-opponent shall not be excluded by the hearsay rule. But her
brief contains no legal analysis or citation of authority supporting such a claim, which
thus is deemed abandoned. See Hutchinson v. Whaley, 333 Ga. App. 773, 776-777 (2)
(777 SE2d 251) (2015). See also Seabrooks v. State, 306 Ga. 670, 671 (2) (832 SE2d
847) (2019).
Westmoreland refers in her brief to res ipsa loquitur, seemingly to contend that
the issue of Walgreens’s negligence is a jury question because there is no other
explanation for the incident. Res ipsa loquitur “is an evidentiary based rule which
provides for an inference of negligence to arise from the occurrence of an
injury-causing incident.” Matthews v. Yoplait USA, 352 Ga. App. 591, 593 (835 SE2d
393) (2019) (citation and punctuation omitted). The doctrine applies where: “(1) the
injury is of a kind which ordinarily does not occur in the absence of someone’s
negligence; (2) [the injury was] caused by an agency or instrumentality within the
exclusive control of the defendant; and (3) [the injury was not] due to any voluntary
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action or contribution on the part of the plaintiff.” Kmart Corp. v. Larsen, 240 Ga.
App. 351, 352 (522 SE2d 763) (1999) (citations and punctuation omitted).
But the doctrine does not apply here. We have held that a “defendant store does
not retain exclusive control over the item [that allegedly caused the plaintiff’s injury]
as a matter of law . . . where the uncontroverted evidence reflects that the item was
within the reach of other customers.” Aderhold v. Lowe’s Home Centers, 284 Ga.
App. 294, 295 (643 SE2d 811) (2007). Here, the six-pack “had not been in
[Walgreens’s] exclusive control because the undisputed evidence showed that the
package had been placed on a [shelf in a cooler] and was readily accessible to other
customers.” Sheats v. Kroger Co., 336 Ga. App. 307, 312 (4) (784 SE2d 442) (2016).
Westmoreland references spoliation. She seems to argue that Walgreens had
notice that she contemplated litigation so it had a duty to preserve the six-pack’s
packaging, and its failure to do so triggers a rebuttable presumption that the
packaging would have been harmful to Walgreen, defeating its entitlement to
summary judgment. See Baxley v. Hakiel Indus., 282 Ga. 312, 313 (647 SE2d 29)
(2007). See also OCGA § 24-14-22. To show that Walgreens was on notice of
contemplated litigation, Westmoreland points to Walgreens’s assistant manager’s
apology to her after the incident, his offer to pay the cost of her seeing a doctor, and
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the transmission of an email from a “Senior Claims Consultant” and “Vice President,
Legal and Deputy General Counsel.”
“[W]hether spoliation occurred is a question of fact, to be decided by the court
. . . .” Hillman v. ALDI, Inc., 349 Ga. App. 432, 444 (4) (825 SE2d 870) (2019).
“[T]he trial court must determine whether spoliation occurred, whether the spoliator
acted in bad faith, the importance of the compromised evidence, and so on.” MARTA
v. Tyler, 360 Ga. App. 710, 712 (1) (860 SE2d 224) (2021) (citation and punctuation
omitted). Here, the trial court found that Westmoreland presented no evidence to
support a claim of spoliation. Indeed, Westmoreland does not even point to evidence
that the packaging was destroyed, particularly considering that Walgreens denied
Westmoreland’s request for admission that “Walgreens does not have in its
possession the damaged packaging, or any visual representation of it.”
As the trial court found, Westmoreland did not request the beer packaging
during discovery, raise any dispute concerning the production of the beer packaging
during discovery, or depose any of Walgreens’s witnesses. So even were we to accept
Westmoreland’s contention that Walgreens was on notice that she contemplated
litigation, she has not shown that Walgreens failed to preserve the evidence.
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Judgment affirmed. Rickman, C. J., and Senior Appellate Judge Herbert E.
Phipps concur.
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