FOURTH DIVISION
MCFADDEN, P. J.,
WATKINS and PADGETT, 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.
https://www.gaappeals.us/rules
September 16, 2026
In the Court of Appeals of Georgia
A26A1219. HOLSTON v. ABOEBARENSI, INC. et al.
MCFADDEN, Presiding Judge.
After tripping over an air hose and falling at a vehicle repair shop, Kristina
Holston brought this action against the shop and its owner, asserting negligence claims
grounded in premises liability, vicarious liability, and negligent training and
supervision against the shop, its owner, and the owner of the real property on which
the shop sits (hereinafter, the defendants). The trial court granted summary judgment
to the defendants on all of Holston’s claims and denied Holston’s motion for
sanctions based on the defendants’ alleged spoliation of a surveillance video. Holston
challenges both rulings on appeal.
As detailed below, the defendants were entitled to summary judgment on the
premises liability claim because Holston testified that she saw the air hose before she
tripped on it. Holston does not argue that summary judgment was improper on her
other two claims. Finally, she has not shown that the trial court’s decision against
imposing sanctions fell outside that court’s wide discretion. So we affirm.
1. Facts
Viewed in the light most favorable to Holston, the nonmovant, see SMG Constr.
Servs. v. Cook, 322 Ga. 819, 820 (922 SE2d 76) (2025), the evidence shows that on
August 12, 2021, Holston took her car to the shop. She parked the car and went into
the shop’s office. Not finding anyone there, she walked back outside, where a shop
employee was changing a tire on a car in front of one of the service bays. Holston saw
various tools and equipment scattered on the pavement near the employee, including
an air hose that ran in a “wiggly jiggly” fashion across a sidewalk from the bay to the
area where he was working.
Holston asked the employee if another mechanic was there. The employee told
her that the mechanic was working in another service bay, and Holston began to walk
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toward that bay. After taking a step forward, she tripped over the air hose and fell to
the pavement, injuring herself.
2. Summary judgment
Holston challenges the trial court’s grant of summary judgment to the
defendants. As detailed below, she has not shown error.
(a) Premises liability claim
“Where an owner or occupier of land, by express or implied invitation, induces
or leads others to come upon his premises for any lawful purpose, he is liable in
damages to such persons for injuries caused by his failure to exercise ordinary care in
keeping the premises and approaches safe.” OCGA § 51-3-1. “[T]he fundamental
basis for an owner or occupier’s liability [is] that party’s superior knowledge of the
hazard encountered by the plaintiff.” Robinson v. Kroger Co., 268 Ga. 735, 736(1) (493
SE2d 403) (1997). “It is when the perilous instrumentality is known to the owner or
occupant and not known to the person injured that a recovery is permitted.” The
Landings Ass’n v. Williams, 291 Ga. 397, 399 (728 SE2d 577) (2012) (citation
modified).
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Accordingly, our Supreme Court has explained the analysis in a slip-and-fall or
trip-and-fall action as follows:
[T]o recover for injuries sustained in a slip-and-fall [or trip-and-fall]
action, an invitee must prove (1) that the defendant had actual or
constructive knowledge of the hazard; and (2) that the plaintiff lacked
knowledge of the hazard despite the exercise of ordinary care due to
actions or conditions within the control of the owner/occupier.
However, the plaintiff’s evidentiary proof concerning the second prong
is not shouldered until the defendant establishes negligence on the part
of the plaintiff — i.e., that the plaintiff intentionally and unreasonably
exposed [her]self to a hazard of which the plaintiff knew or, in the
exercise of ordinary care, should have known.
Robinson, 291 Ga. at 748-49(2)(b). See also Williams Inv. Co. v. Girardot, 354 Ga. App.
762, 763-64 (841 SE2d 436) (2020).
The defendants do not challenge the existence of a genuine issue of material fact
regarding their actual or constructive knowledge of the air hose. Instead, they argue
that they are entitled to summary judgment because Holston had actual knowledge of
the air hose equal to their own knowledge. We agree.
“A person has actual knowledge of a hazard where the evidence shows that
[she] saw or was actually aware of the hazard at issue.” SMG Constr. Servs. v. Cook,
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322 Ga. 819, 824 (922 SE2d 76) (2025). Holston’s undisputed deposition testimony
that she saw the air hose before tripping over it establishes that she was actually aware
of that hazard. See Right Stuff Food Stores v. Gilchrist, 279 Ga. App. 784, 786 (632
SE2d 405) (2006) (holding that a gas station was entitled to summary judgment on a
premises liability claim where the plaintiff had first seen a gas hose lying on the ground
and then tripped over it).
Although Holston attempts to minimize the impact of her knowledge on this
case by arguing in her appellate brief that she did not see “the part of the hose that she
tripped on,”and thus did not fully appreciate the danger the air hose presented, a
“plaintiff’s misapprehension of the precise details of a known hazard does not negate
[her] actual knowledge of that hazard.” SMG Constr. Servs., 322 Ga. at 825-26. In
addition, Holston has pointed to no evidence that, despite being aware of the air hose,
her perception of it was impaired in a manner that would have caused her not to
appreciate the risk it posed to her. Cf. Cook v. SMG Constr. Servs., __ Ga. App. __,
__(2) (932 SE2d 648) (2026) (finding the existence of a genuine issue of material fact
as to whether the plaintiff voluntarily assumed the risk of a hazard of which he had
actual knowledge where there was evidence that he did not realize his proximity to the
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hazard). Finally, given Holston’s actual knowledge of the air hose, we are not
persuaded by Holston’s argument that the presence of a shop employee somehow
creates a factual question regarding her exercise of ordinary care that precludes
summary judgment. See Milledgeville Manor Partners v. Lewis, 328 Ga. App. 482, 484-85(1) (763 SE2d 723) (2014) (holding that, as a matter of law, a plaintiff who chose to
walk across an area where she knew a hazard was located failed to exercise ordinary
care and could not prevail on her premises liability claim). Under the circumstances
of this case, because Holston “admitted to having actual knowledge of the hazard at
issue[,]” she cannot show that the defendants had superior knowledge of the hazard,
and the trial court did not err in granting them summary judgment on the premises
liability claim. Right Stuff Food Stores, 279 Ga. App. at 786.
(b) Other claims
The trial court granted summary judgment to the defendants on Holston’s
claims for vicarious liability and negligent training and supervision, holding that these
claims were derivative of the premises liability claim. In her appellate brief, Holston
provides no argument or citations of authority addressing these other two claims,
apart from the premises liability argument that we reject above in Division 2(a). So to
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the extent Holston intended her enumeration of error to encompass the grant of
summary judgment on her vicarious liability and negligent training and supervision
claims, she has not met her burden of showing error.
3. Sanctions
Holston challenges the trial court’s denial of her motion for sanctions based on
the defendants’ alleged spoliation of evidence. Our Supreme Court has defined the
term “spoliation” to mean “the destruction of or failure to preserve evidence that is
relevant to contemplated or pending litigation.” Phillips v. Harmon, 297 Ga. 386,
393(II) (774 SE2d 596) (2015) (quotation marks omitted). See Silman v. Assocs.
Bellemeade, 286 Ga. 27, 28 (685 SE2d 277) (2009).
If a trial court has determined that spoliation has occurred, the court
should weigh the following five factors when deciding the appropriate
penalty: (1) whether the party seeking sanctions was prejudiced as a
result of the destroyed evidence; (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; and (5) the potential for
abuse if any expert testimony about the destroyed evidence was not
excluded.
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Murphy v. Janilink Corp., 274 Ga. App. 573, 575(1) (913 SE2d 420) (2025)
(punctuation omitted). Accord AMLI Residential Props. v. Ga. Power Co., 293 Ga. App.
358, 361(1) (667 SE2d 150) (2008); R. A. Seigel v. Brown, 246 Ga. App. 177, 180(2)
(539 SE2d 873) (2000). “A trial court has wide discretion in adjudicating spoliation
issues, and we will not disturb the trial court’s judgment absent an abuse of
discretion.” The Anthem Cos. v. Wills, 305 Ga. 313, 315(2) (823 SE2d 781) (2019). As
detailed below, Holston has not shown an abuse of discretion in this case.
Holston asserts that the defendants spoliated evidence by failing to preserve a
surveillance video recording of the day of her fall. Citing undisputed record evidence
that the surveillance cameras would not have captured the area of Holston’s fall and
the repair shop owner’s sworn testimony that he had accidentally erased the recording
while trying to view it, the trial court held that Holston had not demonstrated that any
spoliation occurred, but that even if there had been spoliation, sanctions were not
appropriate because there was no prejudice and no showing that the recording was
destroyed in bad faith.
For purposes of our analysis we will assume that spoliation occurred. The
defendants do not contend that they lacked notice of the litigation when the recording
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was erased. See generally Phillips, 297 Ga. at 396(II) (holding that the duty to preserve
evidence arises when litigation is pending or reasonably foreseeable to the party in
control of the evidence). And although our Supreme Court has held that spoliation
occurs when relevant evidence is destroyed, see id. at 393(II), the trial court did not
expressly address relevance in his order; he held that “any finding of spoliation of
video in this matter would be merely speculative.” We decline to address the
relevance of the evidence in the first instance.
Instead, we will turn to the trial court’s alternative holding that even if
spoliation occurred, it did not warrant sanctions. The trial court based this holding on
the absence of any evidence in the record “that [d]efendants acted in bad faith or that
any party is prejudiced by any potential spoliation[,]” factors that, as discussed above,
the trial court was required to consider in exercising his discretion. See Murphy, 274
Ga. App. at 575(1).
Given the undisputed evidence that Holston had actual knowledge of the air
hose before she tripped on it, the trial court was authorized to conclude that she had
not shown she was prejudiced by the loss of the video recording. See Wilson v.
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Mountain Valley Cmty. Bank, 328 Ga. App. 650, 652-53(2) (759 SE2d 921) (2014)
(holding that to show prejudice from spoliation, the injured party must establish a
causal link between the failure of the underlying claims and the spoliation); Fred’s
Stores of Tenn. v. Davenport, 307 Ga. App. 58, 59-60(2) (703 SE2d 700) (2010)
(accord). Cf. Baxley v. Hakiel Indus., 282 Ga. 312, 313-14 (647 SE2d 29) (2007)
(holding, in a dram-shop liability case, that a video recording from an establishment
at which a patron had consumed alcohol “could have contained information relevant
to the critical issue of whether [the patron] would soon be driving, e.g., an image of
her walking through [the establishment] with keys in hand or leaving with another
person[,]” even though the recording would not have captured the area where the
patron had been sitting when she consumed the alcohol). As explained above, the facts
that Holston suggests the recording might have shown — “the position and
movement of the hose, the conduct of the unidentified employee [who was present
when she fell], and the conditions surrounding the incident immediately before the
fall” — would not have made a difference to her claims, because Holston’s admission
that she saw the air hose before tripping on it was dispositive.
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Likewise, given the undisputed evidence that the erasure of the video recording
was accidental, the trial court was authorized to conclude that the repair shop owner
had not acted in bad faith. Where relevant evidence is lost through “mere
negligence,” sanctions are not necessarily required or appropriate, because
“information lost through negligence may have been favorable to either party,
including the party that lost it, and inferring that it was unfavorable to that party may
tip the balance at trial in ways the lost information never would have.” Creek House
Seafood & Grill v. Provatas, 358 Ga. App. 727, 731(2) (856 SE2d 335) (2021) (citation
modified).
For these reasons, Holston has not shown that the trial court abused his wide
discretion in declining to impose sanctions for spoliation.
Judgment affirmed. Watkins and Padgett, JJ., concur.
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