MORRISON v. J. H. HARVEY COMPANY, INC., 256 Ga. App. 38

Phipps, Judge. On July 13, 2000, Evelyn Morrison sued J. H. Harvey Company (Harvey) for negligence in having caused her to slip and fall while a patron at Harvey’s Supermarket in Brunswick on July 14,1998. Morrison testified by affidavit that the fall occurred on July 14, 1998, contrary to numerous documents and affidavits submitted by Harvey reflecting that the fall occurred on July 11,1998. Finding a contradiction between Morrison’s affidavit testimony and certain of her interrogatory responses on the issue of when the fall occurred, the trial court construed Morrison’s testimony against her and awarded

summary judgment to Harvey based on the running of the applicable two-year statute of limitation. We hold that Morrison did not give contradictory testimony and that a conflict in the evidence necessitates submission of this case to a jury. We, therefore, reverse. In answering Harvey’s interrogatories, Morrison acknowledged that after she fell at Harvey’s Supermarket, she was taken by ambulance to the emergency room of Southeast Georgia Regional Medical Center, and that she had not been involved in any other accident or occurrence at this supermarket except the one giving rise to this suit.

The emergency room report, which bears Morrison’s signature, reflects that her treatment at that facility occurred on July 11, 1998. The emergency room physician whose name appears in the report testified by affidavit that he treated Morrison for a slip and fall at Harvey’s Supermarket on July 11, 1998. In addition, the manager of the supermarket testified by affidavit that Morrison’s slip and fall occurred on July 11, 1998. As a result of the slip and fall, the supermarket prepared a customer accident report which shows the date of the fall as July 11, 1998.

In her affidavit, Morrison nonetheless averred that the slip and fall occurred on July 14, 1998. According to the trial court, Morrison “must explain the discrepancy between her discovery responses, which tie the date of her fall to the date of her emergency room treatment, and her contention by affidavit that the fall occurred on a date subsequent to the date of that treatment.” Citing Anglin v. Harris, the court ruled that Morrison’s failure to explain this discrepancy renders her opposition to

summary judgment a conclusory statement insufficient to create a dispute of material fact. 1. Anglin applies the rule articulated in Prophecy Corp. v. Charles Rossignol, Inc that “[t]he testimony of a respondent on

summary judgment is to be construed against her where it is self-contradictory, vague, or equivocal,” absent a reasonáble explanation. The first question is whether answers to interrogatories constitute “testimony” within the meaning of the Prophecy Corp. rule. We hold that they may, as it has been recognized that answers to interrogatories by a party may be admissible in evidence as admissions, and that admissions are evidence. 2. The next question is whether Morrison’s affidavit testimony and her discovery-response admissions are self-contradictory, vague, or equivocal.

In her affidavit, Morrison testified without vagueness or equivocation that her slip and fall at Harvey’s Supermarket occurred on July 14. This testimony is not contradicted by Morrison’s interrogatory-response admissions that she was treated for her injuries at the emergency room on the same date as the fall and that this was the only time she ever fell at this supermarket. Although Morrison’s discovery responses do tie the date of her fall to the date of her treatment at the emergency room, they do not address the issue of when those events occurred.

Contrary to the finding of the trial court, Morrison did not testify in her affidavit that the fall occurred on a date subsequent to her treatment. Morrison merely testified that the fall (and thus the treatment) occurred on a date subsequent to that shown by Harvey’s evidence. Unquestionably, Harvey has presented a compendium of persuasive evidence (including a document signed by Morrison) reflecting that Morrison’s slip and fall occurred on July 11. And Morrison has failed to explain her basis for challenging this evidence.

The Prophecy Corp. rule, however, does not extend so far as to require any explanation unless the testimony is self-contradictory, vague, or equivocal. Consequently, we find Prophecy Corp. and thus Anglin inapplicable here. If this case were to be presented to a jury, and if the jury were to find that the slip and fall occurred on the fourteenth of the month rather than the eleventh, such a verdict, though decidedly against the weight of the evidence, would be supported by testimonial evidence given by Morrison. The trial court thus erred in granting Harvey’s motion for

summary judgment. As recognized in cases such as Tronitec, Inc. v. Shealy, determining witness credibility and weighing the evidence are jury functions and not those of the judge in ruling on a motion for

summary judgment. 3. The dissent refers to certain of Morrison’s interrogatory answers, which we have not considered. The reason we have not considered them is that the parties have not raised any arguments concerning them. The reason for this would be that they bear no real relevance to this appeal, as there is no conflict between these interrogatory responses and Morrison’s affidavit testimony.

The dissent correctly notes that Morrison stated in her interrogatory responses that her medical bills and records were attached but that neither the attachments nor photocopies thereof appear in the appellate record: Nonetheless, the dissent assumes that medical records were attached to . Morrison’s responses and that they reflect the same date for her fall as that set forth in the records relied on by Harvey. Based on this assumption, the dissent would find a conflict between Morrison’s affidavit testimony and this documentary evidence (supposedly) relied on by her.

If such a conflict were in fact shown by the record, we might agree with the dissent that

summary judgment was correctly granted to Harvey under Prophecy Corp. (or some extension thereof). Because such a conflict does not appear in the record, we are forced to conclude that Harvey was not entitled to

summary judgment. Judgment reversed. Johnson, P. J., Smith, P. J., and Miller, J., concur and concur specially. Mikell, J., concurs specially. Blackburn, C. J., and Andrews, P. J., dissent. 244 Ga. App. 140 (1) (534 SE2d 874) (2000). 256 Ga. 27, 28 (1) (343 SE2d 680) (1986). (Footnote omitted.) Anglin, supra, 244 Ga. App. at 142 (1). Shiver v. Norfolk-Southern R. Co., 269 Ga. 168, 169 (496 SE2d 903) (1998). Crosby v. Cooper Tire &c. Co., 240 Ga. App. 857, 867 (8) (524 SE2d 313) (1999), rev’d on other grounds, Cooper Tire &c. Co. v. Crosby, 273 Ga. 454 (543 SE2d 21) (2001). Faulkner v. Brown, 92 Ga. App. 602, 603 (1) (89 SE2d 583) (1955). In Anglin, the plaintiff against whom

summary judgment was awarded gave equivocal testimony in her deposition as to the date of the accident giving rise to the suit. Here, Morrison’s deposition was not taken. Had it been, she may have been caught in the same equivocation as was Anglin. Compare Anglin, supra, where the plaintiff in her deposition equivocated on the issue of when the accident occurred. We do not mean to imply that Harvey could not assert that Morrison’s position lacked substantial justification under OCGA § 9-15-14 (

b) if the jury returned a defense verdict. 249 Ga. App. 442, 448 (6) (547 SE2d 749) (2001).