Pacheco v. Regal Cinemas, Inc.
311 Ga. App. 224
| Ga. Ct. App. | 2011Background
- On September 29, 2006, in a DeKalb County movie theater parking lot, Jesus Silencio was attacked by individuals from a truck and fatally shot during the confrontation.
- Pacheco, individually and as administrator of Silencio's estate, and Olga Pacheco sued Regal Cinemas, Inc. and Perfections Management Solutions, LLC for negligence in security.
- A jury trial yielded a defense verdict and judgment; the trial court denied the Pachecos' motion for new trial.
- The Pachecos alleged spoliation of a surveillance video showing parking lot views and argued it affected key issues, including whether Silencio contributed to his death and the duration of the altercation.
- Defense testimony contended the video did not capture the altercation but showed entry and exit of the truck within about five minutes; estimates of the altercation duration varied widely.
- The trial court charged the jury with a rebuttable presumption for spoliation under OCGA § 51-12-33 and declined to give a instruction that the Pachecos’ version was true; the court otherwise instructed on fault apportionment under OCGA § 51-12-33.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether spoliation sanctions were properly applied | Pacheco asserts harsher sanctions were warranted for lost video evidence. | Regal/Perfections contend trial court did not abuse discretion; sanctions were adequate. | No reversible error; sanctions within trial court discretion. |
| Constitutionality of OCGA § 51-12-33 as applied | Challenge to statute's constitutionality should lead to error. | Statutory framework properly authorizes fault apportionment. | Constitutional challenges waived; statute properly charged. |
| Apportionment of fault between premises owner and criminal perpetrators | Premises owner cannot be fairly apportioned fault for criminal conduct. | OCGA § 51-12-33 contemplates apportionment among all liable, regardless of naming. | Court properly instructed on fault apportionment under OCGA § 51-12-33. |
| Preservation and ruling on objections to jury charge | Objections to spoliation and apportionment instructions should be preserved for appeal. | Arguments not properly preserved; waivers apply. | Some issues waived; no reversible error in jury charge. |
Key Cases Cited
- Baxley v. Hakiel Indus., 282 Ga. 312 (Ga. 2007) (spoliation sanctions and discretion)
- R & R Insulation Svcs. v. Royal Indem. Co., 307 Ga.App. 419 (Ga. App. 2010) (range of sanctions for spoliation; abuse of discretion factors)
- Wal-Mart Stores v. Lee, 290 Ga.App. 541 (Ga. App. 2008) (trial court must weigh prejudice and remedies before sanctions)
- Whitehead v. State, 287 Ga. 242 (Ga. 2010) (requirement to obtain ruling on objection to evidence to preserve appeal)
- Jones v. Sperau, 275 Ga. 213 (Ga. 2002) (trial court duty to charge on applicable law if supported by evidence)
- Merrill Crossings Assocs. v. McDonald, 705 So.2d 560 (Fla. 1997) (apportionment considerations; Florida statute cited by some; distinguishable)
- Turner v. Jordan, 957 S.W.2d 815 (Tenn. 1997) (statutory framework addressing fault allocation)
- Cavalier Convenience v. Sarvis, 305 Ga.App. 141 (Ga. App. 2010) (context on apportionment and comparative fault principles)