THIRD DIVISION
DILLARD, P. J.,
GOBEIL and PIPKIN, JJ.
NOTICE: Motions for reconsideration must be
received no later than 4:30 pm on the 10th day after
the decision was issued to be deemed timely filed.
https://www.gaappeals.gov/rules
October 28, 2026
In the Court of Appeals of Georgia
A26A1225, A26A1673. SMITH, AS LIMITED CONSERVATOR
FOR PRISCILLA RAY, WARD v. MILL CREEK
RESIDENTIAL SERVICES, LLC et al., and vice versa.
GOBEIL, Judge.
In September 2017, Priscilla Ray sustained injuries when she was attacked in the
stairwell of the Modera Midtown apartments (“Modera”) by Rasaan Larrier. Modera
was being constructed by, owned, and managed by Mill Creek Residential Services,
LLC, MCRT Southeast Construction, LLC (“MRCT”), and CPT Midtown Atlanta
Development, LLC (collectively referred to as “Mill Creek”). At the time of the
assault, Larrier was employed as a construction worker for one of Mill Creek’s
subcontractors. Ray1 brought the underlying personal injury action against Mill Creek,
1
Due to Ray’s mental health struggles following the incident, Michael Smith was appointed as limited conservator for Ray. Although Smith brought the action on asserting numerous claims, including negligent hiring, supervision and retention,
negligence and negligence per se, and premises liability. The case proceeded to trial
on her premises liability claim, and the jury found in favor of Ray, finding that she had
suffered $5 million in damages. In its verdict, the jury assigned percentages of fault to
Mill Creek and several non-parties, including Larrier, Uriah Charles d/b/a Executive
Design Millworks, LLC (“EDM”) (Larrier’s direct employer), and NFC Amenity
Management (“NFC”) (Ray’s direct employer). The trial court entered a judgment
in the amount of $250,000 against Mill Creek, representing the 5 percent fault the jury
assigned to Mill Creek.
In Case No. A26A1225, Ray appeals, arguing that the trial court should have
given her requested “eggshell plaintiff” jury instruction. She also challenges the
judgment entered on the verdict, arguing that the trial court erred by allowing the jury
to assign fault to Mill Creek’s contractors and subcontractors. We agree in part, and
we vacate the judgment and remand for the trial court to enter a new judgment in
accordance with this opinion.
behalf of Ray in his capacity as limited conservator, for simplicity’s sake, references in this opinion to “Ray” refer either to Priscilla Ray or Michael Smith in his capacity as conservator acting on Ray’s behalf.
2
Given this disposition, we find that Mill Creek’s appeal in Case No. A26A1673
(pertaining to the trial court’s dismissal of its motion for fees and expenses under
OCGA § 9-11-68(b)(1)) is moot.
“After approval by the trial court, a jury verdict and the judgment thereon[ ]
will not be disturbed on appeal if supported by any evidence, in the absence of any
material error of law.” Anderson by Phillips v. Smith, __ Ga. App. __, __ (932 SE2d
675) (decided June 25, 2026).
So viewed and in light of the issues raised on appeal, the evidence presented at
trial showed as follows. In 2017, the high-rise section of Modera, a luxury apartment
building located in midtown Atlanta, was under construction. Construction on the
mid-rise portion of the building was largely complete, and tenants were residing there
under a temporary certificate of occupancy. Ray was employed as a concierge at
Modera; her direct employer was NFC, a company that provided and managed
concierge services at Modera to Mill Creek.
MCRT acted as the general contractor on the construction project, and it
subcontracted with Atlanta Commercial Millworks, Inc. (“ACM”) for work at
Modera. In turn, ACM entered into a verbal contract with Toney L. Martin to
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perform millwork at the site, which consists of installing trim, doors, and finishing
similar interior items. Martin subcontracted with EDM, and EDM hired Larrier.
At approximately 6 p.m. on September 21, 2017, Ray was working at the front
desk at Modera. Two of her co-workers left to get dinner, leaving her alone in the
lobby. Larrier approached Ray and indicated his work was finished for the day, but he
needed to show her something in the construction area. Although NFC employees
were generally prohibited from entering active construction areas in the building for
safety reasons, Ray had not yet been trained on this aspect of her job because the
incident occurred on her second day of work. Ray followed Larrier to a stairwell, and
when she tried to leave, Larrier told her: “[I]f you scream or move, I will kill you.”
After Larrier told Ray to “turn around and bend over,” she began to scream, and he
shoved two of his fingers down her throat. He then stabbed her in the ear and neck
with a screwdriver and started to choke her.
Just then, Wes Simpson, who was working for MCRT as the assistant project
manager at the Modera project, heard Ray and ran to the stairs. He observed that
Larrier had Ray in a choke hold with the screwdriver pressed to her neck, and she was
covered in concrete dust and blood. Larrier threatened to kill Ray; he then paused and
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ran away. Simpson grabbed Ray, took her to another floor, and called 911. The
incident aggravated Ray’s pre-existing post-traumatic stress disorder and depression,
and she became suicidal in the following years. As a result, the Probate Court of
Fulton County found Ray mentally incapacitated due to her mental health challenges
and appointed Michael Smith as a limited conservator to protect her interests.
Ray then filed the underlying action in the State Court of Fulton County against
Mill Creek, raising claims for assault and battery; intentional infliction of emotional
distress; imputed liability; negligent hiring, supervision, and retention; punitive
damages; gross negligence and negligence per se; premises liability; and attorney fees
and expenses of litigation. As litigation proceeded, Ray amended her complaint several
times, adding and later dropping several defendants and claims. In her sixth amended
complaint, Ray’s sole allegation of negligence against Mill Creek sounded in premises
liability. In addition, the parties stipulated that the case was proceeding to trial against
Mill Creek only.
Prior to trial, Ray filed motions in limine seeking to preclude Mill Creek from
apportioning fault to ACM, Martin, EDM, and NFC. Mill Creek filed its own motion
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in limine, arguing that apportionment among those entities was appropriate. The trial
court granted Mill Creek’s motion and denied Ray’s motions.
During the multi-day trial, the jury heard evidence that Larrier had an extensive
criminal history, including charges for rape, robbery, larceny, stalking, and aggravated
assault. The jury also heard evidence that Mill Creek required background checks and
drug testing of its own employees, but it did not require its subcontractors to vet their
employees in any specific way, and instead relied upon the subcontractors to complete
background checks and other employment screening processes. In addition, Mill
Creek relied on its subcontractors to keep track of daily attendance to document which
workers were present on site on a given day. Ray presented expert testimony at trial
that if a proper background check had been conducted, Larrier would have been better
supervised or not hired at all. The expert also criticized the lack of a reliable
attendance tracking system to monitor who was present in the building, noting that the
deterrent effect of having such a system in place could have prevented the attack in
this case.
The evidence adduced at trial also showed that several tenants and Modera
employees had raised concerns about lax security practices in the building. One
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resident testified that he informed Mill Creek that he regularly saw construction
workers in the residential hallway, and at one point, a subcontractor tried to get inside
his apartment without authorization. Michelle Pittman, a property manager for Mill
Creek, testified that she had sought permission from Mill Creek to notify residents of
violent crime occurring “within a reasonable distance of the building,” but Mill Creek
did not allow her to warn residents. Pittman also raised issues with the lack of access
control in the building, which she testified resulted in people being able to enter the
building without authorization. These concerns extended to subcontractor
construction workers being “in areas of the building that they should not be in, areas
that residents had already moved into,” in offices, and in amenity areas. In addition,
Pittman expressed to Mill Creek her unease about construction workers entering the
lobby area and making female residents and staff uncomfortable. She raised these
complaints multiple times per week, but received no response.
At the conclusion of the trial, the jury returned a verdict finding that Ray had
suffered $5 million in damages, and it apportioned fault as follows: 5 percent to Mill
Creek, 0 percent to Ray, 51 percent to non-party Larrier, 20 percent to non-party
NFC, 3 percent to non-party ACM, 20 percent to non-party EDM, and 1 percent to
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non-party Martin. On October 30, 2025, the trial court entered judgment on the jury’s
verdict, determining that Mill Creek was liable to Ray in the amount of $250,000
based on the percentage of fault the jury assigned to it. Ray appealed from this
judgment in Case No. A26A1225.
On November 18, 2025, Mill Creek filed a motion for attorney fees and costs
pursuant to OCGA § 9-11-68. Specifically, Mill Creek described that it offered to
settle Ray’s claims for $1.25 million prior to trial, but this offer was rejected when Ray
failed to respond within 30 days. It therefore sought an award of post-rejection
attorney fees and litigation costs pursuant to OCGA § 9-11-68 in the amount of
$2,680,705.10. The trial court dismissed the motion as untimely because it was filed
outside the term of court in which the judgment was entered. Mill Creek’s appeal
from this order was docketed in this Court as Case No. A26A1673.
A26A1225
1. Ray argues that the trial court erred by failing to give her requested
instruction on the “eggshell” plaintiff rule, which states that tortfeasors must take
their victims as they find them. See Thomas v. Accurate Steel Rule Cutting Die, 375 Ga.
App. 457, 465(3) (916 SE2d 510) (2025).
8
This Court “review[s] de novo an allegedly erroneous jury instruction ... [and]
the instruction must be evaluated in the context of the trial court’s jury instructions
as a whole.” Smith v. Gadegbeku, 377 Ga. App. 39, 46(2) (921 SE2d 524) (2025)
(citations and quotation marks omitted). This Court conducts a “harmless error
review of a trial court’s refusal to give a requested charge.” Ga. Bone & Joint Surgeons,
P. C. v. Keel, 376 Ga. App. 79, 82(2) (918 SE2d 127) (2025). In determining whether
the denial of a requested jury charge was error, this Court “examine[s] the given jury
charges as a whole.” Id. at 83(2)(a). For the refusal to charge to constitute error, the
requested charge must be “entirely correct and accurate; adjusted to the pleadings,
law, and evidence; and not otherwise covered in the general charge.” Lee v. Swain, 291
Ga. 799, 800(2)(b) (733 SE2d 726) (2012).
Prior to trial, Ray submitted proposed jury instructions, including an instruction
on the aggravation of a preexisting injury and a separate instruction on the eggshell
plaintiff rule. During the charge conference, the trial court indicated it would give the
pattern jury charge on aggravation, but Mill Creek objected to the eggshell plaintiff
instruction. Mill Creek argued that the proximate cause and aggravation of a
preexisting injury charges adequately covered the concept of an eggshell plaintiff, and
9
the trial court sustained the objection. After the trial court instructed the jury, Ray
renewed her objections to the failure to give her requested charges.
In support of her argument that the trial court erred by failing to give her
requested charge, Ray relies heavily on this Court’s decision in Setliff v. Littleton, 264
Ga. App. 711 (592 SE2d 180) (2003). In that case involving a motor vehicle collision,
where there was evidence that the plaintiff’s knee had “a little area of degeneration,”
but that it was “also possible that she has a genetic tendency to get problems with her
knees,” we concluded that the trial court did not err in instructing the jury on both
aggravation and the eggshell plaintiff rule. Id. at 714(3). Importantly, we reached this
conclusion by examining the jury charges as a whole, and noted that the trial court’s
giving both charges did not unduly emphasize either concept. Id. In addition, because
the defense attempted to attribute the plaintiff’s knee problems to an origin other than
the automobile accident and to a combination of preexisting conditions and
degenerative problems, we found no error. Id.
This Court’s decision in Setliff does not mandate a different result in the instant
case. Indeed, at trial, the jury heard testimony pertaining to Ray’s upbringing and the
numerous mental health challenges she had prior to the attack. It also heard evidence
10
that she had suffered new and worsening issues after the assault. In closing argument,
the defense did not attempt to minimize or distinguish which damages were
attributable to certain conditions; instead, it emphasized the lack of documentation
supporting Ray’s request for $52 million in damages.
And, consistent with the testimony of Ray’s medical experts — that her injuries
were the result of the aggravation of her already fragile mental state — the trial court
instructed the jury on the concepts of proximate cause and aggravation of a preexisting
condition. When viewed as a whole, the trial court’s instructions did not mislead the
jury or misstate the law. In any event, even if the requested charge was appropriate,
the court’s failure to give the charge in the “exact language requested is not reversible
error because the trial court accurately and fully charged the relevant law.” Wadkins
v. Smallwood, 243 Ga. App. 134, 140(5)(a) (530 SE2d 498) (2000). See also Mosaic
Bus. Advisory Servs. v. Stone, 336 Ga. App. 28, 35-36(4) (784 SE2d 426) (2016) (where
the legal concepts are “substantially covered by the instructions given by the trial
court,” court’s failure to give requested charge does not amount to reversible error).
2. As noted above, the jury found that Ray had suffered $5 million in damages
and apportioned fault as follows: 5 percent to Mill Creek, 0 percent to Ray, 51 percent
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to non-party Larrier (the perpetrator of the assault on Ray), 20 percent to non-party
NFC (Ray’s direct employer), 3 percent to non-party ACM (subcontractor to Mill
Creek), 20 percent to non-party EDM (Larrier’s direct employer and subcontractor
of Mill Creek via Martin), and 1 percent to non-party Martin (subcontractor of Mill
Creek via ACM). On appeal, Ray argues that the trial court erred by allowing Mill
Creek to apportion fault to its subcontractors because it owed Ray a non-delegable,
statutory duty under OCGA § 51-3-1. According to Ray, because Mill Creek was
vicariously liable for any fault of its subcontractors, division of fault was not possible
and the trial court erred by permitting the jury to consider apportionment. Given this
Court’s recent decision in Ga. Power Co. v. Ries, 379 Ga. App. 356 (928 SE2d 447)
(2026), cert. denied (Oct. 14, 2026), we are constrained to agree, and we therefore
vacate the judgment and remand for the trial court to enter a new judgment.
In personal injury actions, OCGA § 51-12-33(b) requires the trier of fact to
“apportion its award of damages among the person or persons who are liable
according to the percentage of fault of each person.” In doing so, “the trier of fact
shall consider the fault of all persons or entities who contributed to the alleged injury
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or damages, regardless of whether the person or entity was, or could have been, named
as a party to the suit.” OCGA § 51-12-33(c).
OCGA § 51-3-1 imposes a statutory duty upon an owner or occupier of land “to
exercise ordinary care in keeping the premises and approaches safe.” OCGA § 51-3-1.
And, pursuant to OCGA § 51-2-5(4), “[a]n employer is liable for the negligence of a
contractor ... [i]f the wrongful act is the violation of a duty imposed by statute[.]”
Reading these statutes together, Mill Creek is vicariously liable for its subcontractors’
negligent conduct which violated Mill Creek’s non-delegable, statutory duty to keep
the premises safe. See Camelot Club Condo. Ass’n v. Afari-Opoku, 340 Ga. App. 618,
627(2)(b) (798 SE2d 241) (2017), disapproved in part on other grounds by Ga. CVS
Pharm. v. Carmichael, 316 Ga. 718, 732(II)(C) (890 SE2d 209) (2023).
“The touchstone of an apportionment analysis is whether fault is divisible.
Vicarious liability for another’s fault is liability for all of it. So fault cannot be divided
among persons where one is vicariously liable for the other’s negligence.” Ries, 379
Ga. App. at 367(5) (citation omitted). See also Eliezer v. Mosely, 369 Ga. App. 102, 108
(891 SE2d 555) (2023) (holding that where one named defendant was vicariously liable
for the other named defendant’s acts or omissions “division of fault is not possible”
13
and thus fault could not be allocated under the apportionment statute); Camelot Club
Condo. Ass’n, 340 Ga. App. at 627(2)(b) (holding that if one defendant’s wrongful act
“were found to be a violation of [the other defendant’s] non-delegable, statutory duty,
any negligence on the part of [the former] would be charged to [the latter]”) (citation
modified).
[I]n assessing the percentages of fault for the purpose of
apportioning damages under OCGA § 51-12-33(b), the trier of fact shall
consider the fault of the persons or entities who contributed to the
alleged injury or damages. OCGA § 51-12-33(c). Nothing in that statute
says that vicarious liability should be treated differently with respect to
the fault of non-parties under OCGA § 51-12-33(c) from the way it is
treated with respect to the fault of named defendants under OCGA § 51-12-33(b). Part of that process is considering whether the non-party’s
fault is divisible or indivisible from that of the named defendant. If the
fault is indivisible, the jury should not be charged on apportioning
damages between the vicariously liable named defendant and the
allegedly negligent non-party.
Ries, 379 Ga. App. at 368(5) (punctuation omitted).
As to the safety and security of the premises, Mill Creek’s fault is indivisible
from its subcontractors’ fault based on a premises liability theory, which notably was
the only claim that Ray pursued at trial. So as to that claim, Mill Creek is vicariously
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liable for all of its subcontractors’ fault. See PN Express v. Zegel, 304 Ga. App. 672,
680(5) (697 SE2d 226) (2010) (holding that the trial court properly declined a named
defendant’s request to charge the jury on apportionment of damages between it and
a third party for whose negligence the named defendant was vicariously liable).
Consequently and following the holding in Ries,2 the trial court erred in allowing the
jury to assign fault to NFC, ACM, EDM, and Martin. The fault that the jury assigned
to those subcontractors is chargeable to Mill Creek, and “that fault should have been
included in the amount of damages apportioned to [Mill Creek].” Ries, 379 Ga. App.
at 368(5).
In accordance with the holding in Ries, we vacate the judgment and remand the
case “for the trial court to enter a judgment in accordance with the jury’s verdict,”
by adding the fault assigned to NFC, ACM, EDM, and Martin to the fault assigned
to Mill Creek. 379 Ga. App. at 369(5).
2
Mill Creek argues that Ries is inapposite and does not support Ray’s argument. We disagree. While Ries involved claims for negligence and vicarious liability which could have been attributable to either the apartment complex or its contractor, and a theory of premises liability against the apartment complex, the instant case proceeded to trial only on a theory of premises liability for which, under the evidence presented to the jury, only Mill Creek was vicariously liable. See OCGA § 51-3-1, 51-2-5(4). Furthermore, the fact that the jury in this case returned a general verdict, as in Ries, does not warrant a different result.
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A26A1673
3. In its cross-appeal, Mill Creek argues that the trial court erred by dismissing
as untimely its motion for attorney fees and expenses incurred after Ray rejected its
offer of settlement filed in accordance with OCGA § 9-11-68. Pretermitting whether
its arguments have merit, its contentions are now moot because post-rejection fees and
expenses are only available if “the final judgment obtained by the plaintiff is less than
75 percent of such offer of settlement.” OCGA § 9-11-68(b)(1). Because of our
holding in Division 2, there is no longer a judgment in favor of Ray that is less than 75
percent of Mill Creek’s offer, and it is not entitled to the requested fees. Harris v.
Martin, 373 Ga. App. 158, 163(2) (908 SE2d 17) (2024). Mill Creek’s appeal of the
trial court’s order is therefore moot.
Judgments vacated and cases remanded with direction. Dillard, P. J., and Pipkin,
J., concur.
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