Brixmor New Chastain Corners Sc, LLC v. James

NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court
Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the
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official text of the opinion.


In the Supreme Court of Georgia



                                                   Decided: December 19, 2023


 S23G0795. BRIXMOR NEW CHASTAIN CORNERS SC, LLC v.
                      JAMES.


        MCMILLIAN, Justice.

        Respondent Arlene James filed a premises liability action

against Petitioner Brixmor New Chastain Corners SC, LLC arising

out of injuries she sustained when she tripped on a parking bumper

in a parking lot owned by Brixmor.1 Brixmor filed a motion for




        1 According to the Court of Appeals’s opinion, on the evening of January

12, 2020, while it was dark outside, James and her husband parked at a
shopping center owned by Brixmor and went inside a restaurant to watch a
football game. As they left, James tripped on a concrete barrier adjacent to
their parking space and was injured. The barrier consisted of three concrete
parking bumpers laid end-to-end along the side of their parking space – not in
front, as is usual – to separate the parking space from a motorcycle parking
area. The barrier was light in color and rested on the painted white line of the
parking space. Prior to the incident, the parking bumpers in the lot had been
painted red or yellow, but after some asphalt work was performed, two new
bumpers were installed that were left in their natural light color. Five days
after James’s fall, Brixmor painted the bumpers yellow at the restaurant’s
request. See Brixmor, 367 Ga. App. at 236 (1).
summary judgment on James’s claims, and the trial court denied the

motion, pointing to issues of material fact that remained regarding

whether the structure on which James tripped constituted a hazard

and whether James had previously traversed it, thus giving her, at

least, constructive knowledge of the hazard. In the same order, the

trial court granted a motion filed by James seeking sanctions for

spoliation of evidence based on Brixmor’s decision to paint the

parking bumpers in the area of James’s fall after the incident. As a

result, the trial court barred Brixmor “from introducing evidence or

argument that the parking bumper was not a potential hazard.”

     Brixmor appealed both of those rulings to the Court of Appeals,

which affirmed the denial of summary judgment, based on the jury

questions identified by the trial court. See Brixmor New Chastain

Corners SC, LLC v. James, 367 Ga. App. 235, 236-39 (2) (884 SE2d

393) (2023). However, the Court of Appeals vacated the order

imposing spoliation2 sanctions and remanded the matter to the trial


     2 This Court has defined the term “spoliation” to mean “the destruction

or failure to preserve evidence that is relevant to contemplated or pending

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court after determining that the trial court had applied an incorrect

legal standard in granting James’s motion. See id. at 240-41 (3). For

the reasons explained below, we grant Brixmor’s petition for writ of

certiorari; vacate the Court of Appeals’s opinion, in part; and

remand the case to that court.3

      In its petition, Brixmor seeks review of three questions: (1)

whether the trial court erred in imposing spoliation sanctions

without considering that the alteration in question was remediating

a potential hazard; (2) whether the trial court erred in imposing

spoliation sanctions 4; and (3) whether summary judgment should

have been granted based on the prior traversal rule. We grant the

petition for writ of certiorari, not to address these issues, but rather



litigation.” Phillips v. Harmon, 297 Ga. 386, 393 (II) (774 SE2d 596) (2015)
(citation and punctuation omitted).
       3 “Our rules contemplate that we may grant a petition for certiorari and

dispose of the case summarily, without full briefing and oral argument,” and
we elect to do so here “because the issue we resolve would not benefit from
further briefing and argument.” Sanchious v. State, 309 Ga. 580, 581 n.1 (847
SE2d 166) (2020) (citation and punctuation omitted).
       4 Brixmor asserts that spoliation sanctions were not authorized because

Brixmor did not have notice that James would bring a claim, Brixmor did not
act willfully to interfere with James’s claim, and James cannot claim prejudice
as she possessed photographs of the condition as it existed at the time of the
incident.
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to address the Court of Appeals’s determination that Brixmor failed

to show an abuse of discretion by the trial court in failing to consider

the subsequent remedial measures rule5 in its analysis of the

spoliation issue. See Brixmor, 367 Ga. App. at 240 (3). Once the

Court of Appeals concluded that the trial court applied the incorrect

standard on spoliation and remanded the case to the trial court to

apply the correct spoliation standard, consideration of the remedial

measure rule was unnecessary to the resolution of the issues on

appeal and the court’s determination on the issue was thus

dicta. Moreover, the Court of Appeals’s conclusion in this regard

resolved, with little analysis, an open and difficult legal question

under Georgia law regarding what consideration, if any, must be

given to the subsequent remedial measures rule in addressing the



      5 Under this rule, evidence of subsequent remedial measures generally

is inadmissible in negligence actions, because the admission of such evidence
conflicts with the public policy of encouraging safety through remedial action.
We have noted that remedial safety measures might be discouraged if they are
admissible as evidence of negligence. See Brooks v. Cellin Mfg. Co., 251 Ga.
395, 397 (306 SE2d 657) (1983) (“Men should be encouraged to improve, or
repair, and not be deterred from it by the fear that if they do so their acts will
be construed into an admission that they have been wrongdoers.”) (citation and
punctuation omitted)).
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issue of spoliation.

     Therefore, we vacate Division 3 of the opinion to the extent that

it purports to make such a legal determination, and we remand this

case to the Court of Appeals for proceedings consistent with this

opinion.

     Petition for writ of certiorari granted, judgment vacated in part,
and case remanded with direction. All the Justices concur.




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