                              FOURTH DIVISION
                                DOYLE, P. J.,
                           MILLER and DILLARD, JJ.

                   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 17, 2014




In the Court of Appeals of Georgia
 A14A1241. HILL v. KONE, INC.                                                DO-064

      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 the light most
      favorable to the nonmoving party, warrant judgment as a matter of law.1


      So viewed, the record shows that at approximately 10:00 p.m. one night in

November 2009, Hill and a coworker 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




      1
        (Citation and punctuation omitted.) Home Builders Assn. of Savannah v.
Chatham County, 276 Ga. 243, 245 (1) (577 SE2d 564) (2003), quoting Lau’s Corp.
v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

                                           2
nine hours servicing elevators one, three, and four, plus the freight elevator.2 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


        2
            Based on the description by Hill’s coworker, the subject elevator was elevator
four.

                                              3
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.

      Following a hearing, the trial court granted the motion, giving rise to this

appeal.

      Hill contends that the trial court erred because the record contains factual

issues as to whether the proper elevator was taken out of service and inspected as

required by OCGA § 8-2-106 (c), which issues give rise to a spoliation presumption

precluding summary judgment at this stage. We agree.

      OCGA § 8-2-106 addresses elevator accidents and provides as follows, in

relevant part:

      (a) The [building] 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.


                                            4
      ...


      (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, or placed back
      in service until inspected by a certified inspector for the enforcement
      authority.3


      This Court has held that failure to comply with the 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.”4 “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.”5

      Here, there is evidence that the inspection authorities were notified and came

to inspect the elevator, but there is some evidence that the post-incident inspection


      3
          (Emphasis supplied.)
      4
          Lane v. Montgomery Elevator Co., 225 Ga. App. 523, 525 (1) (484 SE2d 249)
(1997).
      5
          (Citations omitted.) Id.

                                           5
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.6 Because the record contains a factual dispute as to

compliance with OCGA § 8-2-106, and in light of the expert testimony as to Kone’s

failure to properly maintain the elevator at issue, summary judgment was not

appropriate.7

       Judgment reversed. Miller and Dillard, JJ., concur.




       6
           Id. at 526 (1).
       7
        See id. See also Beach v. B.F. Saul Property Co., 303 Ga. App. 689, 696 (2)
(694 SE2d 147) (2010) (physical precedent only) (due to some evidence of an injury
implicating OCGA § 8-2-106, jury was entitled “if nothing else” to decide whether
spoliation arose under OCGA § 8-2-106; “[p]roof of spoliation raises a rebuttable
presumption that the evidence would have been harmful to [the property owner] and
thus the evidence favored [the plaintiffs], a fact rendering the grant of a directed
verdict inappropriate”); Thomas v. MARTA, 300 Ga. App. 98, 100-101 (1) (684 SE2d
83) (2009) (summary judgment precluded by spoliation).

                                             6
