PRESERVATION MANAGEMENT, INC. et al.
HERRERA, as Conservator of B. W., a Minor; and vice versa.
David Huray, Jack Allen Butler, Atlanta, Robert Peter
Marcovitch, for Appellants in A19A0777, Appellees in
Timothy Rogers, Gilbert H. Deitch, Andrew C. Evans, Naveen
Ramachandrappa, Atlanta, William Michael DAntignac, Alyson
Evans, Kara Elizabeth Phillips, for Appellee in A19A0777,
Appellant in A19A0778.
Brian Terry, for Appellant in A19A0778.
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 courts order,
which also denied her motion to compel discovery and motion
for sanctions based on the defendants alleged spoliation of
evidence. For the reasons set forth infra, we
vacate the trial courts order, and remand this case for
in the light most favorable to the plaintiff, as the
nonmovant on summary judgment, 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.
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.
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.
extensive discovery, the defendants moved for summary
judgment, contending, inter alia, that Silvers 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
plaintiffs previously filed motion to compel discovery and
motion for sanctions based on alleged spoliation of evidence.
June 28, 2018 order (the "June 28 Order"), the
trial court denied the motion for summary judgment with
respect to the plaintiffs 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
that Silver always had a resident escort when he was on [the
Briarcliff Summit] premises, if ...