Spoliation of evidence in Georgia premises liability

Spoliation is the loss of evidence that a party had a duty to keep, and in a Georgia premises case it comes down to two questions: when did litigation become reasonably foreseeable to the owner, and what sanction fits the loss? Phillips v. Harmon, 297 Ga. 386 (2015), says the duty “is triggered not only when litigation is pending but when it is reasonably foreseeable to that party”. After that, the trial court has wide discretion over whether any sanction follows.

When the duty begins

Phillips lets a court look at what the owner knew and did, not only whether the plaintiff sent a letter.

Factor	Example at a store
Type and extent of the injury	An ambulance took the customer away
How clear fault was	A spill was left for a long time
Potential financial exposure	A serious injury
Relationship and course of conduct, including past litigation	Earlier claims involving that location
Frequency of litigation in similar circumstances	Falls at that kind of business
What the owner did in response	It investigated, called its insurer, or called counsel

Each is a factor, not a rule. Phillips itself concerned a hospital and a newborn’s injury. So a minor fall with no complaint may not trigger anything, while an injury report may. A preservation letter removes much of the doubt, so send one quickly.

A plaintiff can owe the same duty. A person who plans to sue and throws away shoes, or repairs or sells something important, risks a sanction too. So keep what you have.

What counts as spoliation

“Spoliation refers to the destruction, failure to preserve, or material alteration of evidence that is relevant to contemplated or pending litigation”, as Brixmor New Chastain Corners v. James, 367 Ga. App. 235 (2023), quotes it. Alteration matters. In that case, the owner painted the parking bumpers yellow, and the court didn’t find an abuse of discretion in treating that as a material change. The owner argued that the rule on subsequent remedial measures in § 24-4-407 protected it. But the Court of Appeals vacated the sanction ruling, because the trial court had applied an incorrect legal standard, and sent it back.

Evidence	How it's lost	Issue
Surveillance video	Automatic overwrite	Whether overwriting was allowed to go on
Video of only part of the time	Selective saving	Who chose what to keep
Sweep logs	Scheduled discard	Dates and the duty
The hazard	Repaired or changed	Repair is not always wrongful
A mat, step, or cone	Thrown away	Whether the owner knew it mattered
Incident photos and reports	Lost	Who had them

An owner may have to fix a danger for safety’s sake. It can document the condition first and allow an inspection, so ask for that. For more on video, see surveillance footage.

The five factors for a sanction

Holston v. Aboebarensi, A26A1219 (2026), lists what a court weighs once it finds spoliation:

1. Whether the party seeking sanctions was prejudiced by the loss.
2. Whether the prejudice could be cured.
3. The practical importance of the evidence.
4. Whether the destroying party acted in good or bad faith.
5. The potential for abuse if expert testimony about the destroyed evidence was not excluded.

In Holston, the plaintiff had seen the air hose that caused the trip, and the claim failed on knowledge. The court also held that the denial of sanctions didn’t fall outside the trial court’s “wide discretion”. So a lost video isn’t enough if it wouldn’t have helped the case, or the loss wasn’t in bad faith.

In Hailu v. John Milledge Academy, A25A1130 (2025), the appeals court reversed, and on spoliation it said that the plaintiff didn’t have to prove the video showed the fall. Together, these decisions show the range.

Possible sanctions

Kelley v. Blue Line Carriers, 300 Ga. App. 577 (2009), lists “(1) a jury charge that spoliation of evidence creates the rebuttable presumption that the evidence would have been harmful to the spoliator; (2) dismissal of the case; or (3) the exclusion of testimony about the evidence.” Those sit alongside § 24-14-22, which has a presumption where a party has evidence “in such party’s power and within such party’s reach” and omits to produce it.

Kelley also shows that a plaintiff has to ask. It held that the plaintiff “did not file a motion for sanctions”. The court decides spoliation, not the jury, and it selects the remedy. An appellate court reviews for abuse of discretion, and Sentry Select v. Treadwell, 318 Ga. App. 844 (2012), shows that even a finding of spoliation can lead to a reversal if the sanction goes beyond what the record supports.

Making the record for a motion

Show this	With this
What existed	Camera map, retention policy, log samples
When it was lost	System records, employee testimony
The duty on that date	Incident report, insurer notice, the letter
What it would have shown	Camera angle, witness accounts
Prejudice	What can't be proved without it
Other sources	Why they don't cure the loss

Take a records deposition before filing the motion, so the record is specific. A motion filed late can still be heard, but it has fewer facts behind it, and the court may wonder why it took so long.

Don’t overclaim. A court that sees routine loss before any duty arose may not act, however helpful the evidence might have been. The stronger cases show that the owner investigated, knew of an injury, and then let the video go.

Letter checklist

1. Date, time, and exact place.
2. Name of the injured person.
3. All cameras that may show the area, with a period before and after.
4. Logs, schedules, incident reports, and photos.
5. The physical hazard, with a request for inspection before any repair.
6. Delivery that provides proof of receipt.

Documenting premises hazards lists what the injured person can do alone. In a truck case, federal record rules add to this, as evidence preservation explains.

Sources

• Phillips v. Harmon, 297 Ga. 386
• Brixmor New Chastain Corners v. James, 367 Ga. App. 235
• Holston v. Aboebarensi, A26A1219
• Hailu v. John Milledge Academy, A25A1130
• Kelley v. Blue Line Carriers, 300 Ga. App. 577
• Sentry Select v. Treadwell, 318 Ga. App. 844
• Official Code of Georgia Annotated, November 2022 public release: §§ 24-4-407, 24-14-22

This page was last reviewed in November 2026 for general information. Laws and court decisions can change after that date. It is not legal advice and does not create an attorney-client relationship.