                              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
