However, in order for the injured party to pursue a remedy for spoliation, the spoliating party must have been under a duty to preserve the evidence at issue. Whitfield v. Tequila Mexican Restaurant No. 1, 323 Ga.App. 801, 807(6), 748 S.E.2d 281 (2013). OCGA § 24–14–22 provides:

“[A] property owner is not an insurer of an invitee's safety, and an intervening criminal act by a third party generally insulates a proprietor from liability unless such criminal act was reasonably foreseeable.”(Citations and punctuation omitted.) Whitfield v. Tequila Mexican Rest. No. 1, 323 Ga.App. 801, 803(2), 748 S.E.2d 281 (2013). “In order to be reasonably foreseeable, the criminal act must be substantially similar in type to the previous criminal activities occurring on or near the premises so that a reasonable person would take ordinary precautions to protect his or her customers against the risk posed by that type of activity.”

“A spoliation claim cannot be pursued unless the spoliating party was under a duty to preserve evidence.” Whitfield v. Tequila Mexican Restaurant No. 1, 323 Ga.App. 801, 807(6), 748 S.E.2d 281 (2013) (citations and punctuation omitted). [T]o meet the standard for proving spoliation, the injured party must show that the alleged tortfeasor was put on notice that the party was contemplating litigation.

Phillips v. Harmon, 297 Ga. 386, 393–394, 774 S.E.2d 596 (2015). See also Whitfield v. Tequila Mexican Restaurant No. 1, 323 Ga.App. 801, 807(6), 748 S.E.2d 281 (2013), overruled on other grounds, Harmon, 297 Ga. at 398, 774 S.E.2d 596. Of particular relevance here, “[the] trial court has wide discretion in resolving spoliation issues, and we will not disturb its ruling absent abuse.” Kitchens v. Brusman, 303 Ga. App. 703, 705(1), 694 S.E.2d 667 (2010).Here, the trial court found that: (1) the collision between the plaintiffs and the driver of the stolen vehicle occurred on January 6, 2009; (2) pursuant to Atlanta Police Department Policy Manual, Standard Operating Procedure 4.18.3 (1), audio recordings “are kept for approximately 120 days before being reused,” meaning that the recording would have been reused on or about May 6, 2009; (3) Loehle submitted ante litem notice to the City on June 26, 2009; and (4) the City received Loehle's ante litem notice on or about June 29, 2009. Loehle filed its civil action against the City on December 13, 2010. It was not until December 12, 2012, in an email from the City in response to

In Georgia, “[a] spoliation claim cannot be pursued unless the spoliating party was under a duty to preserve evidence.” Whitfield v. Tequila Mexican Rest. No. 1, 323 Ga.App. 801, 748 S.E.2d 281, 287 (2013). This duty may burden a party to a case if a third party destroys evidence when acting as the litigant's agent.

Since "a tort claim must fail where liability is established but no damages can be shown," Blackford v. Wal-Mart Stores, Inc., 912 F. Supp. 537, 539 (S.D. Ga. 1996), it follows that negligence claims must fail where no recoverable damages have even been pled (again, plaintiffs seek no nominal or compensatory damages, doc. 26 at 5-6). See also Whitfield v. Tequila Mexican Restaurant No. 1, 323 Ga. App. 801, 806 (2013) ("Because we have found that the trial court properly granted summary judgment to Tequila on the negligence and gross negligence claims, Whitfield's claim for punitive damages under OCGA § 51-12-5.1 also must fail.").