After consuming alcohol at Brewsters and The Place, Mary Karafiat was involved in an automobile accident with motorcyclist Marcus Dwayne Baxley, who was seriously injured. Brewsters’s manager learned of the accident that night and of Karafiat’s involvement the next day. Knowing that Karafiat, a “somewhat” regular customer, had been at Brewsters prior to the accident, the manager questioned her staff as to what Karafiat had been served. Brewsters had three video cameras in operation on the premises, but the tape from the date of the accident was reused and recorded over after four days, in the regular course of business. Baxley’s guardian filed suit against Karafiat; Hakiel Industries, Inc. d/b/a “Brewsters”; and Behnamiri & Assoc., LLC d/b/a “The Place.” The trial court granted summary judgment to the owners of Brewsters and The Place on Baxley’s claims brought pursuant to the Georgia Dram Shop Act, OCGA § 51-1-40 b, noting that although there was an issue of fact regarding whether Karafiat was noticeably intoxicated when served alcohol, there was an absence of a triable issue regarding these defendants’ constructive knowledge that Karafiat would soon be driving. The Court of Appeals affirmed in Baxley v. Hakiel Indus. , 280 Ga. App. 94 633 SE2d 360 2006. We granted certiorari to consider whether a spoliation presumption should have been applied to the claims against Brewsters due to the destruction of the videotaped material from the night of the accident.1 See id. at 95 1.
” ‘Spoliation refers to the destruction or failure to preserve evidence that is necessary to contemplated or pending litigation.’ ” Footnote omitted. Bouve & Mohr, LLC v. Banks , 274 Ga. App. 758, 762 1 618 SE2d 650 2005. Such conduct ” ‘creates the presumption that the evidence would have been harmful to the spoliator.’ ” Footnote omitted. American Multi-Cinema, Inc. v. Walker , 270 Ga. App. 314, 317 2 b 605 SE2d 850 2004. See also OCGA § 24-4-22. Proof of spoliation raises “ a rebuttable presumption against the spoliator that the evidence favored the spoliator’s opponent, a fact rendering summary judgment inappropriate. Cit.” Lane v. Montgomery Elevator Co. , 225 Ga. App. 523, 525 484 SE2d 249 1997. Compare Sharpnack v. Hoffinger Indus., Inc. , 231 Ga. App. 829, 831 499 SE2d 363 1998 grant of summary judgment to defendant not error when plaintiff cannot establish meaningful link between underlying claims and alleged spoliation.
