HILL v. COLE CC KENNESAW GA, LLC Et Al. , 334 Ga. App. 845 ( 2015 )

FIRST DIVISION
DOYLE, C. J.,
PHIPPS, P. J., and BOGGS, J.
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.
http://www.gaappeals.us/rules
November 20, 2015
In the Court of Appeals of Georgia
A15A0993. HILL v. COLE CC KENNESAW GA, LLC et al.
PHIPPS, Presiding Judge.
Shakira Hill filed a complaint against Cole CC Kennesaw GA, LLC (“Cole
CC”), Corporate Facilities Group, Inc. (“CFG”), and Kone, Inc., to recover for
injuries she allegedly sustained when she tripped and fell while entering an elevator
that had not stopped level with the floor. Cole CC owned the building where the
incident occurred, CFG managed the premises, and Kone serviced and maintained the
elevators. Hill alleged that the defendants were negligent because they had failed to
properly maintain the elevators. Cole CC, CFG, and Kone moved for summary
judgment, which motions the trial court granted in two separate orders.
In a prior appeal, Hill v. Kone (“Hill I”),1 Hill challenged the grant of summary
judgment to Kone.2 This court reversed that judgment.3 Here, Hill appeals the grant
of summary judgment to Cole CC and CFG. For the reasons that follow, we reverse
that grant of summary judgment as well.
[O]n appeal from the denial or grant of summary judgment the appellate
court is to conduct a de novo review of the evidence to determine
whether there exists a genuine issue of material fact, and whether the
undisputed facts, viewed in the light most favorable to the nonmoving
party, warrant judgment as a matter of law.4
So viewed, the evidence showed that on November 4, 2009, an elevator
technician employed by Kone was at the building in which Hill worked, performing
preventive maintenance on elevators number one, three, and four, and a freight
elevator.5 The technician left the building at 5:00 p.m. after he purportedly completed
the maintenance and the elevators were working properly. At about 10:00 that night,
1
329 Ga. App. 716 (766 SE2d 120) (2014).
2
Id.
3
Id.
4
Benton v. Benton, 280 Ga. 468, 470 (629 SE2d 204) (2006) (citations
omitted); see Hood v. Todd, 287 Ga. 164, 165 (695 SE2d 31) (2010).
5
See Hill I, supra at 717.
2
Hill and a co-worker entered elevator number four. The elevator had stopped such
that its floor was not level with the building’s floor. Hill did not notice the
misleveling, and tripped, striking her head on a metal railing inside the elevator.
Hill’s co-worker then pushed a button on the elevator, causing the elevator to descend
to the lobby floor, where a security officer called 911. Hill was taken to a hospital for
treatment.6 After Hill’s fall, another building occupant rode the same elevator to a
different floor, then returned in the elevator to the lobby and reported that the elevator
was not functioning properly.7 The incident was then reported to the Georgia
Department of Labor, which sent a representative to inspect the elevator with a Kone
employee the next day.8 There is evidence that they inspected only elevator number
three - although Hill had fallen in elevator number four - and that elevator number
four was not removed from service.9 (No defects were found during the inspection of
elevator number three.)10
6
Id.
7
Id.
8
Id.
9
Id.
10
Id.
3
A. Prior appeal
In December 2013, the trial court granted Kone’s motion for summary
judgment, holding that Kone had no knowledge of the leveling problem before the
incident occurred, that Kone had a regularly scheduled inspection and service
program and had performed maintenance and inspection on the day of the incident,
and that there was no evidence that the elevator had a defect on the date of the
incident.
In reversing the trial court’s judgment (in November 2014), this court in Hill
I held that factual issues remained regarding whether Kone had complied with OCGA
§ 8-2-106, which requires property owners to take certain actions following elevator
accidents involving personal injury or death.11 OCGA § 8-2-106 provides, in relevant
part:
(a) The owner or lessee shall report, by telephone, to the enforcement
authority on the same day or by noon on the next work day, . . . all
elevator . . . related accidents involving personal injury or death. The
owner or lessee shall also provide a written report of this accident within
seven days. . . . (c) Any elevator . . . involved in an accident described
in subsection (a) . . . of this Code section shall be removed from service
at the time of the accident. The equipment shall not be repaired, altered,
11
Id. at 718-719.
4
or placed back in service until inspected by a certified inspector for the
enforcement authority.
The Hill I court explained,
failure to comply with th[at] statute, whether intentionally or by mistake,
would constitute a form of spoliation of evidence, because by working
on the elevator prior to inspection, the evidence would have been
tampered with, altered, or destroyed. Spoliation creates the presumption
that the evidence would have been harmful to the spoliator. Proof of
such conduct would raise a rebuttable presumption against Kone that the
evidence favored Hill, a fact rendering summary judgment
inappropriate.12
The court reasoned:
Here, there is evidence that the inspection authorities were
notified [of the accident] and came to inspect the elevator, but there is
some evidence that the post-incident inspection was done on the wrong
elevator. Thus, there is a question of fact as to whether the correct
elevator was taken out of service and whether the correct elevator was
inspected immediately following the incident, as required by OCGA §
8-2-106. [T]he fact that the state inspector could not identify precisely
what caused the misleveling can hardly be surprising in light of the
evidence that the inspection was on the wrong elevator. Because the
record contains a factual dispute as to compliance with OCGA §
12
Id. at 718 (footnotes and punctuation omitted).
5
8-2-106, and in light of [] expert testimony as to Kone’s failure to
properly maintain the elevator at issue, summary judgment was not
appropriate.13
B. This Appeal
In their motion for summary judgment,14 Cole CC and CFG contended that
there was no evidence that they had failed to make the premises safe, and that they
could not be held vicariously liable for Kone’s negligence because the trial court had
granted summary judgment in Kone’s favor.
In its order granting summary judgment to Cole CC and CFG,15 the trial court
found that they (Cole CC and CFG) had no knowledge or notice prior to the incident
that the elevator had a defect; that Kone had a regularly scheduled inspection and
service program to deal with any problems with the elevators; that Cole CC and CFG
were aware that Kone was performing work on the elevators; that Cole CC and CFG
had no notice of a defect on the day of the alleged incident; that there was no
evidence that they had superior knowledge that the elevator was not working properly
13
Id. at 719 (footnotes and punctuation omitted).
14
The motion was filed in February 2014.
15
The trial court entered its order granting summary judgment to Cole CC and
CFG in June 2014.
6
or had malfunctioned prior to the alleged incident; and that because Kone had been
granted summary judgment, Cole CC and CFG could not be held vicariously liable
for Kone’s alleged negligence.
Hill contends that the trial court erred by granting summary judgment to Cole
CC and CFG because (1) there is evidence that they had actual and superior
knowledge of the defect and failed to properly maintain the elevator; and (2) any lack
of evidence showing the existence of a defect on the date of the accident is due to
spoliation.
1. Knowledge of defect and duty to maintain elevator. Pertinent to Cole CC,
“[t]he owner of an office building, equipped with an elevator which is operated for
conveying his tenants and their employees and patrons to and from the various
floors,” has a duty to protect passengers in the elevator.16
This duty requires him to exercise extraordinary diligence on behalf of
himself and his agents to protect the lives and persons of his passengers.
. . .This duty can not be waived or released even by an express contract.
Being one in which the public has an interest, public policy forbids such
a waiver or release. For the same reason that the duty cannot be avoided
by contract with the passengers, this duty of extraordinary diligence
16
Gaffney v. EQK Realty Investors, 213 Ga. App. 653, 655 (445 SE2d 771)
(1994).
7
cannot be delegated to a third party. The owner’s duty remains in place
regardless of whether a third party acquires a duty by undertaking
maintenance or repair. The owner is liable for slight negligence.17
As to CFG, “[a]n agent who undertakes the sole and complete control and
management of the principal’s premises is liable to third persons, to whom a duty is
owing on the part of the owner, for injuries resulting from his negligence in failing
to make or keep the premises in a safe condition.”18
Cole CC and CFG concede that they “cannot avoid their duty [to protect the
elevator passengers] by contracting with a third party, and they remain vicariously
liable for any negligence by Kone.” They also acknowledge that they “could be held
liable on the basis of any slight negligence which proximately caused the injuries to
[Hill], or on the basis of [their] vicarious liability for slight negligence on the part of
Kone.” Yet, at the same time, they assert that there is no evidence that they were
negligent, stating that they, “through the contract with Kone[,] had an aggressive
maintenance and repair program in place.” This assertion is unconvincing because it
17
Id.
18
Ramey v. Pritchett, 90 Ga. App. 745, 751 (3) (84 SE2d 305) (1954) (citation
omitted).
8
ignores the rule that the duty of extraordinary diligence to elevator passengers cannot
be delegated to a third party.19
As found in Hill I,20 there is evidence of Kone’s negligence, including “expert
testimony as to Kone’s failure to properly maintain the elevator at issue.”21
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 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 issues would have been identified, and Kone would have
known to make the needed corrections to the equipment . . . before the
malfunction” that injured Hill.22
19
See Gaffney, supra.
20
Supra.
21
See Hill I, supra at 719.
22
Id. at 717-718.
9
Notably, there was also evidence that a Kone technician had previously discussed the
elevators’ misleveling problems with a CFG employee. Thus, there was evidence of
Cole CC’s and CFG’s negligence, precluding the grant of summary judgment.23
Contrary to the assertion of Cole CC and CFG, Brady v. Elevator Specialists24
is not controlling here. In that case, the plaintiffs “[did] not show that the inspections
or maintenance actually performed were negligent or that [the owner or elevator
maintenance provider] knew or were put on notice during these procedures that [the]
elevator . . . was defective,”25 and there was “no evidence that [the] maintenance
procedures, as formulated or as carried out, were not in conformity with [the elevator
manufacturer’s maintenance] guidelines.”26 Here, however, there was evidence that
Kone had breached industry standards for proper elevator maintenance and inspection
and that, absent that breach, the cause of the misleveling would have been identified
23
See generally Ruben’s Richmond Dept. Store v. Walker, 227 Ga. App. 867,
868 (1) (490 SE2d 536) (1997); Gaffney, supra.
24
287 Ga. App. 304, 308-310 (2) (653 SE2d 59) (2007) (affirming grant of
summary judgment to premises owner and elevator maintenance provider where
plaintiff failed to show defendants’ superior knowledge of the defective condition).
25
Id. at 308 (2).
26
Id. at 305.
10
and Kone would have known what corrections were needed.27 Further, unlike the
instant case, Brady did not involve a spoliation issue.28
2. Spoliation of evidence. Cole CC and CFG assert that the court properly
granted their motion for summary judgment because there is no evidence that the mis-
leveling on the date of the incident was due to a defect, and an inspection conducted
after the incident revealed no problems with the elevator. Regarding OCGA § 8-2-
106, they assert that a tenant of the building, not Cole CC or CFG, moved the elevator
before an inspection could occur, and that they complied with the statute once they
learned of the incident.
However, Hill contends that the trial court erred by granting summary
judgment to Cole CC and CFG because any lack of evidence showing the existence
of a defect on the date of the accident was due to spoliation.
27
Hill I, supra at 718-719.
28
See Brady, supra. See generally Benefield v. Tominich, 308 Ga. App. 605,
609 (1) (708 SE2d 563) (2011) (“in order to prevail at the summary-judgment stage
based on a lack of constructive knowledge, the owner must demonstrate not only that
it had a reasonable inspection program in place, but that such program was actually
carried out at the time of the incident”) (footnote and punctuation omitted) (physical
precedent only). The spoliation issue in the instant case is discussed in Division 2,
infra.
11
As the court stated in Hill I, there was evidence that the elevator at issue was
not removed from service at the time of the accident and was placed back in service
before inspection.29 The appellees’ failure to comply with the statute, whether
intentionally or by mistake, constituted a form of spoliation, rendering summary
judgment inappropriate.30
Judgment reversed. Doyle, C. J., and Boggs, J., concur.
29
Hill I, supra.
30
See id.; Thomas v. MARTA, 300 Ga. App. 98-102 (1) (684 SE2d 83) (2009);
Lane v. Montgomery Elevator Co., 225 Ga. App. 523, 525 (1) (484 SE2d 249) (1997).
12