Elevator. Fulton State Court. Before Judge Porter.
Katz Stepp Wright & Fleming, Robert N. Katz, Briant G. Mildenhall, for appellant.
Joseph D. Perrotta, Swift, Currie, McGhee & Hiers, John W. Campbell, Pamela N. Lee, for appellee.
DOYLE, Presiding Judge. Miller and Dillard, JJ., concur.
Doyle, Presiding Judge.
Shakira Hill appeals the grant of summary judgment to Kone, Inc., an elevator maintenance company, in her personal injury suit based on a trip and fall on an elevator. Hill contends that factual issues remain as to a potential violation of OCGA § 8-2-106 (c), which would give rise to a spoliation presumption barring summary judgment. Because the record contains a factual dispute as to that question, we reverse.
To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. On appeal from the grant of summary judgment this Court conducts a de novo review of the evidence to determine whether there is a genuine issue of material fact and whether the undisputed facts, viewed in [329 Ga.App. 717] the light most favorable to the nonmoving party, warrant judgment as a matter of law.
So viewed, the record shows that at approximately 10:00 one night in November 2009, Hill and a co-worker entered an elevator in their building at the end of their shift, and Hill tripped on the elevator's threshold, which protruded above the floor level. Hill fell and was injured when her head struck the metal railing on the back wall of the elevator. The elevator door closed and took them down to the building lobby, where a security officer called 911 due to Hill's injury. Hill was taken to a hospital where she was treated for her injury. Meanwhile, a fellow building occupant, Craig Allen, rode the subject elevator to determine if it was working properly, and he observed that upon going to a higher floor, the elevator doors would not open. He returned in the elevator to the lobby and reported that the elevator did not function properly.
The record also shows that on the day of the incident, an elevator maintenance and repair technician employed by Kone had been at the building for approximately nine hours servicing elevators one, three, and four, plus the freight elevator. Because of the injury to Hill, the incident was reported to the Georgia Department of Labor, which sent a representative to inspect the elevator with a Kone employee the next day. The record contains evidence that the elevator they inspected was the second on the left (elevator number three), whereas the elevator Hill fell in was the first on the left (elevator number four). No defects were found during the inspection.
Based on Hill's injury, she sued the building owner and Kone, which maintained the elevators pursuant to a contract with the building owner. Following discovery, Kone moved for summary judgment, arguing that Hill could show no material issue of fact as to its liability. In response, Hill relied in part on an affidavit from her expert who averred that the Kone service technician who maintained the elevators did so in a manner inconsistent with the appropriate KONE maintenance manual. For example, the
technician denied in a deposition that certain leveling characteristics should be checked during routine maintenance, which denial contradicted the procedure in the maintenance manual. The expert also noted problems with Kone's record keeping (including mislabeling which elevator had been serviced) and that all of the elevators in the building had [329 Ga.App. 718] experienced leveling issues in the past. The expert averred that Kone breached industry standards for proper maintenance and inspection and that " had the proper tests and inspection and maintenance of the elevators taken place, the components that were causing misleveling ...