BLAKE et al.
KES, INC. et al
Negligence, etc. DeKalb Superior Court. Before Judge Flake.
Judgment affirmed in part and vacated in part, and case remanded with direction.
Bobby C. Aniekwu, for appellants.
Leitner, Williams, Dooley & Napolitan, Christopher D. Gunnels, Jatrean M. Sanders, Thomas O. Sippel, for appellees.
DOYLE, Presiding Judge. Miller and Dillard, JJ., concur.
Doyle, Presiding Judge.
In this action arising from the death of their son Paul Daniel Blake in a residential care facility, plaintiffs Carl and Yvonne Blake appeal the denial of their summary judgment motion and the grant of summary judgment to defendants KES, Inc., Sandra and Kenneth Browner, Mabel Semper, and Nicole Wise (collectively " KES" ). The Blakes contend that the trial court erred by refusing to consider, on procedural grounds, certain depositions and exhibits, including the deposition of their medical expert. For the reasons that follow, we affirm the denial of the Blakes' motion for summary judgment, vacate the grant of summary judgment to KES, and remand.
To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. On appeal from the grant of summary judgment this Court conducts
a de novo review of the evidence to determine whether there is a genuine issue of material fact and whether the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.
[329 Ga.App. 743] So viewed, the facts show that Paul Blake was an adult diagnosed with several developmental disabilities from birth, including organic personality disorder, moderate intellectual disability, and partial complex seizures. By 2005, Paul resided with caretakers at a personal care home and generally spent his days at a KES day habilitation facility, where he received services pursuant to a contract between KES and his parents. In addition to his seizures, Paul had a history of leaving his assigned area without notice or permission, and he needed constant line-of-sight supervision, in addition to daily medication.
On September 22, 2009, Paul arrived at the KES facility at approximately 9:00 a.m. and complained of dizziness and feeling poorly. Paul's immediate care giver allowed him to rest without joining other activities. Around noon, while Paul was finishing his lunch, he asked if he could return to his assigned task of cleaning a computer desk, but he was asked to stay at the lunch table so he could finish eating and continue to rest. When the care giver was out of the room, Paul left the classroom and walked out of the building. Paul was not immediately followed, but staff began tracing his path thereafter.
At approximately 12:19 p.m., security camera footage shows that as Paul walked alongside a van parked at the side of the building, he faltered, leaned into the side of the van, and fell forward down to the ground. Approximately 22 seconds later, a KES worker arrived at Paul's body, and despite the worker's prompting, Paul remained unresponsive. Approximately 40 seconds later another worker, Mabel Semper, arrived and called into the building to advise the staff that they had located Paul. She had to make two calls to reach someone, and in the minutes that followed, Semper called 911 and remained on the line with the operator. During this time, a third employee, Kenneth Browner, arrived and checked Paul's mouth for foreign objects, and Paul was observed to be breathing with a faint pulse. Other employees arrived, and they repositioned Paul to aid in his breathing, and they began CPR chest compressions as instructed by the 911 operator over speakerphone. There was a several minute time gap between Paul's fall and the administration of CPR. Emergency personnel arrived minutes later, took ...