Key Points

  • The Georgia Court of Appeals held that Mill Creek, as owner and occupier of the Modera Midtown apartments, owed a non-delegable statutory duty under OCGA 51-3-1 and was vicariously liable under OCGA 51-2-5(4) for its contractors' and subcontractors' fault on the premises-liability claim.
  • Following Ga. Power Co. v. Ries, the court held that fault is indivisible where one party is vicariously liable for another, so the trial court erred in letting the jury apportion fault to NFC, ACM, EDM and Martin.
  • The court vacated the $250,000 judgment and remanded for entry of a judgment adding those non-parties' fault to Mill Creek's 5 percent share; the attacker's 51 percent share was left in place.
  • The trial court did not err in refusing Ray's requested eggshell-plaintiff instruction because its charges on proximate cause and aggravation of a preexisting condition covered the law.
  • Mill Creek's cross-appeal seeking $2,680,705.10 in fees under OCGA 9-11-68 is moot because the new judgment will not be less than 75 percent of its $1.25 million settlement offer.

The Georgia Court of Appeals ruled Wednesday that an Atlanta apartment owner must answer for the fault a jury assigned to its contractors in a 2017 stairwell attack on a building concierge, vacating a $250,000 judgment that had held the owner responsible for only 5 percent of $5 million in damages.

Writing for a unanimous three-judge panel, Judge Gobeil held that Mill Creek Residential Services, LLC and two other companies, which built, owned and managed the Modera Midtown apartments and which the opinion calls Mill Creek collectively, were vicariously liable for the fault of the companies working under them. Presiding Judge Dillard and Judge Pipkin concurred.

The panel ordered the trial court to enter a new judgment that adds the fault the jury assigned to four non-parties, 44 percent in all, to Mill Creek's 5 percent. By the opinion's figures, that leaves Mill Creek answerable for 49 percent of the damages, or $2.45 million. The 51 percent the jury assigned to the attacker was not disturbed.

The decision applies Ga. Power Co. v. Ries, a 2026 Court of Appeals ruling that the Georgia Supreme Court declined to review on Oct. 14, according to the opinion. Citing Ries, Judge Gobeil wrote that the panel was "constrained to agree, and we therefore vacate the judgment and remand for the trial court to enter a new judgment."

According to the opinion, Priscilla Ray was working the front desk at Modera on her second day on the job in September 2017 when Rasaan Larrier, a construction worker employed by one of Mill Creek's subcontractors, told her he needed to show her something in the construction area. She followed him to a stairwell, where he stabbed her in the ear and neck with a screwdriver and choked her before an assistant project manager heard her and ran to the stairs. The attack aggravated Ray's pre-existing post-traumatic stress disorder and depression, and a probate court later appointed Michael Smith as her limited conservator.

Larrier sat at the bottom of a chain of contracts. MCRT Southeast Construction, LLC, one of the Mill Creek companies, acted as general contractor and subcontracted with Atlanta Commercial Millworks, Inc., which had a verbal contract with Toney L. Martin, who in turn subcontracted with Uriah Charles d/b/a Executive Design Millworks, LLC, Larrier's employer. Ray's own employer, NFC Amenity Management, ran concierge services at Modera for Mill Creek.

At trial in the State Court of Fulton County, jurors heard that Larrier had an extensive criminal history and that Mill Creek relied on its subcontractors to screen their own workers. A Mill Creek property manager testified that she had complained, multiple times a week and without response, about construction workers being "in areas of the building that they should not be in, areas that residents had already moved into."

Ray had dropped her other claims and tried the case only on premises liability, the duty Georgia law places on property owners to keep their premises and approaches safe. Before trial, the judge granted Mill Creek's request to let the jury apportion fault, meaning divide responsibility by percentage, among the contractors and NFC. Georgia's apportionment statute generally requires jurors to weigh the fault of everyone who contributed to an injury, whether or not they were sued.

The jury put Mill Creek at 5 percent, Larrier at 51 percent, NFC and Executive Design Millworks at 20 percent each, Atlanta Commercial Millworks at 3 percent and Martin at 1 percent. Ray bore none of the fault.

On appeal, Ray argued that the premises-liability statute imposed a non-delegable duty on Mill Creek, so that Mill Creek was vicariously liable for its subcontractors' fault. The panel agreed, reading that statute together with one that makes an employer liable for a contractor's violation of a duty imposed by statute. Quoting Ries, Judge Gobeil wrote that "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."

The opinion said that rule governed the case because Ray pursued only one theory at trial. "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," Judge Gobeil wrote. The opinion concluded that "The fault that the jury assigned to those subcontractors is chargeable to Mill Creek."

Mill Creek had argued that Ries did not apply. In a footnote, the panel rejected that argument, contrasting the claims in Ries and noting that "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." The panel added that the jury's general verdict, which did not break down its reasoning, "does not warrant a different result."

Ray lost her other argument. She contended the trial judge should have instructed jurors on the "eggshell" plaintiff rule, under which wrongdoers take their victims as they find them. The panel found no error because the judge had charged the jury on proximate cause and on aggravation of a preexisting condition. "When viewed as a whole, the trial court's instructions did not mislead the jury or misstate the law," Judge Gobeil wrote.

The ruling also disposed of Mill Creek's cross-appeal over $2,680,705.10 in attorney fees and costs. Mill Creek had offered to settle for $1.25 million before trial, and Ray let the offer lapse. Georgia's offer-of-settlement statute shifts post-rejection fees only when the plaintiff's final judgment is less than 75 percent of the offer. The trial court had dismissed Mill Creek's fee motion as untimely.

The panel did not reach that timeliness question. Because of the apportionment ruling, it wrote, "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." It held the fee appeal moot.

The court vacated the judgments and remanded the cases to the State Court of Fulton County with direction to enter judgment in line with the jury's verdict, adding the four non-parties' fault to Mill Creek's. Under the court's rules, motions for reconsideration are due by 4:30 p.m. on the 10th day after the decision.