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Vis v. Harris

Court of Appeals of Georgia

September 24, 2014

VIS
v.
HARRIS et al

Discovery. Fulton State Court. Before Judge Eady.

Timothy J. Santelli, for appellant.

Gray, Rust, St. Amand, Moffett & Brieske, Michael J. Rust, Nicole C. Leet, Cobb & Associates, Kendrick K. McWilliams, for appellees.

BARNES, Presiding Judge. Boggs and Branch, JJ., concur.

OPINION

Barnes, Presiding Judge.

Faythe Vis tripped and fell while a guest at a Sheraton Hotel in Atlanta. She sued hotel employee Niles Harris, hotel owner Starwood Hotels & Resorts Worldwide, Inc., and hotel management company Amerimar Courtland Management Company, Inc. Although Vis served Amerimar with discovery requests along with the complaint and Amerimar answered,

Page 157

it never responded to the requests for admissions. A jury trial resulted in a defense verdict, and Vis appeals, contending that the trial court erred in sua sponte declaring that Vis improperly read Amerimar's admissions to the jury at the beginning of the trial and in withdrawing them from the jury's consideration. We agree that the trial court erred, and reverse.

[329 Ga.App. 130] Vis initially identified the hotel's management or maintenance company as John Doe 1-2 in her complaint for damages, and then successfully moved to substitute Amerimar as a defendant. Amerimar's agent was served with process and discovery requests on December 2, 2010. Vis moved for the entry of a default judgment against Amerimar in August 2010, and Amerimar moved to open the default. On October 27, 2011, the trial court denied Vis's motion for a default judgment and granted Amerimar's motion to open the default. While Amerimar answered the complaint, it admits that it never responded to the requests for admissions.

The parties had numerous discovery disputes as the litigation unfolded. In October 2012, the three defendants moved for summary judgment, arguing that the static defect on which Vis tripped was open and obvious, and that her knowledge of the defect was equal or superior to theirs. In response, Vis argued that the record showed the existence of jury questions and also argued that Amerimar had never answered her requests for admissions and therefore had admitted being at fault for causing damages to Vis. Vis included the requests for admission as an exhibit. The trial court stamped the defendants' motion for summary judgment as " denied" without explanation.

Vis filed three pretrial orders as the case continued. In each one, her brief and succinct outline of the case included the statement, " The Amerimar defendant admitted the case through Admissions served on them without a response." On the day trial began, the trial court signed the parties' proposed consolidated pretrial order, which again contained the statement concerning Amerimar's admissions.

At trial, after the parties gave their opening statements, the court directed Vis's lawyers to call the first witness. One of Vis's lawyers replied:

Your Honor, we have admissions of Amerimar Courtland Management Company. Number Eight, You're at fault for the accident causing damages to the plaintiff. Number Nine, You did not have a proper inspection procedure in place on the date of the accident. Number Ten, the Plaintiff sustained serious injuries. Number 11, The medical expenses incurred by the Plaintiff are reasonable and customary. Number 12, You were warned of the defect prior to the accident. Number 13, No warnings were posted of the hazard prior to the Plaintiff's fall. Number 14, You had notice of the hazard prior to the Plaintiff's fall. Number 15, You were the proximate cause of the Plaintiff's injuries. Number 16, Your negligence is the proximate cause of the Plaintiff's [329 Ga.App. 131] injuries. Number 17, You had video cameras in the hotel at the time of the fall. Number 18, Your video cameras videotaped the plaintiff's fall.

The defendants raised no objections. Vis's other lawyer then said, " Thank you. Your Honor, we call as our first witness, Victor McMahon," and the trial proceeded. McMahon was a guest at the hotel three weeks before Vis fell and testified he had also tripped on a rise in the carpet that was not visible. Another witness testified that he took photographs of the area where Vis fell and that the flooring under the carpet was ...


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