A contractor brought an action against a subcontractor for damaging the foundation of a house by hitting it with heavy equipment (skid steer). According to the contractor, a video surveillance system recorded the incident. However, the video footage, which was maintained by a third party, was destroyed. As a result, the subcontractor filed a motion for summary judgment based on spoliation, arguing that the contractor’s sole evidence was destroyed (or not maintained) by the contractor. As a sanction for the spoliation, the trial court excluded evidence of the video and granted the subcontractor’s motion.
On appeal, the Court overturned the ruling because there was no evidence that the contractor had possession or control of the video footage. The footage was maintained by a monitoring company. The contractor attempted to obtain the footage, but pursuant to the monitoring company’s policies, the footage was destroyed.
The case illuminates the importance of maintaining evidence of incidents and events on projects. If a contractor uses a video surveillance system on a project, and if it maintains control over the system, it should ensure that the footage is preserved — especially when an incident occurs. Though the contractor was able to avoid a legal disaster (spoliation) in this instance, because it exercised no control over the footage, the case shows the risks of allowing the destruction of video footage on construction projects.
Davis v. RX Waterproofing & Found. Repair, LLC, 374 Ga. App. 179 (2025).
