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Boston v. Athearn

Court of Appeals of Georgia

October 10, 2014

BOSTON et al.
v.
ATHEARN et al

Reconsideration denied November 21, 2014 -- Cert. applied for.

Negligence. Cobb Superior Court. Before Judge Leonard.

Woodward & Stern, Natalie S. Woodward, Corey M. Stern, for appellants.

J. Thomas Morgan III, Ragsdale, Beals, Seigler, Patterson & Gray, Edgar S. Mangiafico, Jr., for appellees.

ELLINGTON, Presiding Judge. Phipps, C. J., and McMillian, J., concur.

OPINION

Page 583

Ellington, Presiding Judge.

Alexandria Boston (" Alex" ), a minor, through her parents Amy and Christopher Boston, brought this action in the Superior Court of Cobb County against Dustin Athearn, a minor, his parents, Sandra and Michael Athearn, and other defendants. The Bostons allege that Dustin defamed Alex when, posing as her, he created a Facebook account and profile and posted statements and photographs in that forum that constituted libel under Georgia law.[1] In addition, they allege that Dustin's actions constituted intentional infliction of emotional distress. Sandra and Michael Athearn (" the Athearns" ) moved for summary judgment. After a hearing, the trial court granted the Athearns' motion, and the Bostons appeal. The Bostons contend that questions of material fact remain regarding whether the Athearns breached a duty to supervise their child's use of a computer and an Internet account. In addition, they contend that questions of material fact remain regarding whether the Athearns, as landowners, breached [329 Ga.App. 891] a duty to remove defamatory content existing on their property. For the reasons explained below, we affirm in part and reverse in part.

Under OCGA § 9-11-56 (c),

[s]ummary judgment is warranted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. We review the grant or denial of a motion for summary judgment de novo, and we view the evidence, and the reasonable inferences drawn therefrom, in a light most favorable to the nonmovant.

( Punctuation and footnotes omitted.) Assaf v. Cincinnati Ins. Co., 327 Ga.App. 475, 475-476 (759 S.E.2d 557) (2014). See also Johnson v. Omondi, 294 Ga. 74, 75-76 (751 S.E.2d 288) (2013) (accord) .

Viewed in the light most favorable to the Bostons as the nonmovants, the record shows the following undisputed facts. In early May 2011, Dustin, who was 13 years old, and his friend, Melissa Snodgrass, agreed to have some fun at a classmate's expense by creating a fake Facebook page for that person. Dustin selected Alex, a fellow seventh-grader, as their target, and Melissa agreed. Melissa, posing as Alex, created a Yahoo e-mail account to use to create a new Facebook account, and gave that information to Dustin.

Page 584

On May 4, using a computer supplied by his parents for his use and the family Internet account, Dustin posed as Alex to create a new Facebook account, using the Yahoo e-mail address and the password Melissa supplied. For the profile photo, Dustin used a photo that he had taken of ...


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