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Preservation Management, Inc. v. Herrera

Court of Appeals of Georgia, Second Division

October 30, 2019

PRESERVATION MANAGEMENT, INC. et al.
v.
HERRERA, as Conservator of B. W., a Minor; and vice versa.

         Scott David Huray, Jack Allen Butler, Atlanta, Robert Peter Marcovitch, for Appellants in A19A0777, Appellees in A19A0778.

         Andrew Timothy Rogers, Gilbert H. Deitch, Andrew C. Evans, Naveen Ramachandrappa, Atlanta, William Michael D’Antignac, Alyson Evans, Kara Elizabeth Phillips, for Appellee in A19A0777, Appellant in A19A0778.

         Michael Brian Terry, for Appellant in A19A0778.

         OPINION

         Reese, Judge.

Page 778

          After 12-year-old B. W. was sexually assaulted in a stairwell of an apartment complex known as Briarcliff Summit Apartments ("Briarcliff Summit"), her conservator (the "plaintiff"), sued the owners and management company of Briarcliff Summit (collectively, the "defendants"), for, inter alia, negligence in failing to keep it safe. The State Court of Fulton County denied the defendants’ motion for summary judgment, and we granted their application for interlocutory appeal. The plaintiff filed a cross-appeal from the trial court’s order, which also denied her motion to compel discovery and motion for sanctions based on the defendants’ alleged spoliation of evidence.[1] For the reasons set forth infra, we vacate the trial court’s order, and remand this case for further proceedings.

         Viewed in the light most favorable to the plaintiff, as the nonmovant on summary judgment,[2] the record shows the following facts. Briarcliff Summit has nine stories and 200 apartment units and, at the relevant time, provided Section 8 housing to residents who met certain criteria, including persons with physical and mental disabilities. The defendants had taken security measures at Briarcliff Summit, such as requiring visitors to sign in at the front desk of the building, maintaining a list of persons banned from Briarcliff Summit, requiring residents to use key fobs to enter the building, installing security cameras, and stationing a part-time security guard in the front lobby who periodically patrolled the building.

          On October 15, 2014, Rafe Silver, a frequent visitor at Briarcliff Summit, sexually assaulted B. W. in a stairwell. It is undisputed that there were no security cameras in the stairwells. The police were summoned, and Silver ultimately pled guilty to rape and child molestation.

         The plaintiff filed this premises liability action, alleging that the defendants had negligently failed to keep Briarcliff Summit safe and to properly protect their invitees, including B. W., under OCGA § 51-3-1. The plaintiff also alleged that the defendants had failed to provide adequate security.

          After extensive discovery, the defendants moved for summary judgment, contending, inter alia, that Silver’s intervening criminal act was not foreseeable because there was no evidence of previous, substantially similar criminal acts on or near Briarcliff Summit. The trial court heard oral argument on the defendants’ motion, as well as the plaintiff’s previously filed motion to compel discovery and motion for sanctions based on alleged spoliation of evidence.

          In a June 28, 2018 order (the "June 28 Order"), the trial court denied the motion for summary judgment with respect to the plaintiff’s premises liability claim, finding that a jury question existed as to whether the defendants should have foreseen the specific risk posed by Silver:

A jury must determine whether [Silver] was a known security risk; whether he was banned from the property; whether [the defendants] violated their own safety policies in a way that allowed him to commit the crime for which he was convicted, e.g.[,] by not having a security guard present at the front entrance that Silver used, by allowing him on the premises [of Briarcliff Summit] despite his status as a known security risk and/or banned person, if the jury should so find, and by not ensuring

Page 779

that Silver always had a resident escort when he was on [the Briarcliff Summit] premises, if ...

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