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Pacheco v. Regal Cinemas Inc.

The trial court did not abuse its discretion in charging the jury on the rebuttable presumption arising from spoliation, after the defendants lost a video recording depicting views of a movie theater parking lot where the decedent was fatally shot.

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On September 29, 2006, 21-year-old Jesus Silencio and members of his family arrived in the parking lot of a DeKalb County movie theater. As Silencio was walking toward the theater entrance, a truck stopped near him. Several individuals from the truck, one of whom verbally communicated gang affiliation to Silencio, confronted Silencio and began punching him and hitting him with a bat. During the altercation, Silencio was fatally shot. Immediately after the shots were fired, the individuals who had arrived in the truck quickly fled in their vehicle. A wrongful death action ensued. Carlos Pacheco, individually and as administrator of Silencio’s estate, together with Olga Pacheco, charged two defendants with negligence: 1 the operator of the movie theater upon the premises, Regal Cinemas, Inc.; and 2 the company hired by Regal to provide security thereupon, Perfections Management Solutions, LLC. After a jury trial, the court entered judgment upon the defense verdict, then denied the Pachecos’ motion for new trial. In this appeal, the Pachecos present contentions based upon spoliation and OCGA § 51-12-33, which, as modified by the Tort Reform Act of 2005,1 requires in certain cases the assessment of fault and apportionment of damages. No reversible error has been shown, and we affirm.

Spoliation

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