LITTLE et al.
JIM-LAR CORPORATION et al.
MCFADDEN, C. J., MCMILLIAN, P. J., and SENIOR APPELLATE JUDGE
McFadden, Chief Judge.
judgment may be granted on the basis that a party bearing the
burden of proof has no evidence to support an essential
element of her case. So it is here.
Little and her guardian and conservator, Elbert Jenkins,
brought an action for negligence against McDonald's
Corporation, one of its franchised restaurants, and the owner
of that restaurant. They asserted in their complaint that
Little was harmed physically and psychologically by a severe
allergic reaction to a peach pie served to her instead of the
apple pie she had ordered. In granting summary judgment to
the defendants, the trial court held, among other things,
that Little's verified interrogatory responses were
inadmissible due to her incompetence, and we find no error in
that ruling. The remaining evidence does not create a genuine
issue of material fact as to whether the defendants breached
a duty of care, so we affirm.
judgment is proper "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." OCGA §
9-11-56 (c). Where, as here, the moving party
will not bear the burden of proof at trial[, it] need not
affirmatively disprove the nonmoving party's case, but
may point out by reference to the evidence in the record that
there is an absence of evidence to support any essential
element of the nonmoving party's case. Where a defendant
moving for summary judgment discharges this burden, the
nonmoving party cannot rest on its pleadings, but rather must
point to specific evidence giving rise to a triable issue.
Summary judgments enjoy no presumption of correctness on
appeal, and an appellate court must satisfy itself de novo
that the requirements of OCGA § 9-11-56 (c) have been
met. In our de novo review of the grant of a motion for
summary judgment, we must view the evidence, and all
reasonable inferences drawn therefrom, in the light most
favorable to the nonmovant.
Cowart v. Widener, 287 Ga. 622, 623-624 (1) (a) (697
S.E.2d 779) (2010) (citations and punctuation omitted).
Exclusion of Little's verified interrogatory
plaintiffs argue that the trial court erred in ruling that
Little's interrogatory responses were not admissible. In
those responses, Little described the incident at the center
of this case. She stated that she ordered an apple pie from
the restaurant, instead received a peach pie in a generic
container, had a severe allergic reaction after taking a bite
of the peach pie, received treatment for that reaction, and
subsequently developed a debilitating psychological condition
that she attributes to the incident. Little signed a sworn
verification of her interrogatory responses, and so the trial
court could have considered the responses as evidence when
ruling on the motion for summary judgment. See OCGA §
9-11-56 (e); Falcone Intl. v. Clowes, 184 Ga.App.
442, 443 (1) (361 S.E.2d 708) (1987). See also Los
Angeles Tile Co. v. Chatham County Bd. of Tax Assessors,
209 Ga.App. 245, 247-248 (433 S.E.2d 82) (1993)
(interrogatory responses must be verified to be considered as
evidence on summary judgment). But the trial court did not
consider the responses as evidence, holding that they were
inadmissible because Little was "incompetent."
"We address this issue first in order to determine if
these [responses] were properly [excluded] by the trial court
in ruling on the motion[s] for summary judgment."
Hayes v. SNS Partnership, LP, 326 Ga.App. 185, 186
(1) (756 S.E.2d 273) (2014) (physical precedent). And we find
that the plaintiffs have not shown that the trial court
abused his discretion in this ruling. See Hungry
Wolf/Sugar & Spice v. Langdeau, 338 Ga.App. 750, 751
(791 S.E.2d 850) (2016) (trial court's decision to admit
or exclude evidence on summary judgment is reviewed for abuse
601 of Georgia's evidence code provides that,
"[e]xcept as otherwise provided in [Title 24, Chapter
6], every person is competent to be a witness." OCGA
§ 24-6-601. Nevertheless, "a court has the power to
rule that a witness is incapable of testifying[.]"
United States v. Gates, 10 F.3d 765, 766 (I) (11th
Cir. 1993) (construing Fed.R.Evid. 601). See generally
State v. Almanza, 304 Ga. 553, 556-559 (820 S.E.2d
1) (2018) (reviewing court looks for guidance to federal
appellate case law where provision of Georgia's new
evidence code is materially identical to provision in Federal
Rules of Evidence). The defendants raised the issue of
Little's competence to give the verified responses in
their motions for summary judgment and the trial court held a
hearing on those motions, but the plaintiffs did not include
a transcript of that hearing in the appellate record. Without
a transcript, we must presume that the hearing evidence
supported the trial court's ruling. See Payne v.
Myatt, ___ Ga.App. ___, ___ (1) (___ S.E.2d ___) (Case
No. A19A1560, decided Aug. 21, 2019); Mashburn Constr. v.
CharterBank, 340 Ga.App. 580, 582 (1) (798 S.E.2d 251)
plaintiffs argue that, as a matter of law, Little was not
incompetent to verify one of the sets of interrogatory
responses in the record because she had not yet been
appointed a guardian in the separate guardianship proceeding.
(The record also contains a set of interrogatory responses
that Little verified after the ruling in the guardianship
proceeding.) But Little's qualification for the
appointment of a guardian (and the timing of a ruling on that
appointment) does not determine the trial court's
authority to disregard her testimony. Under OCGA §
29-4-1 (a), a "court may appoint a guardian for an adult
only if the court finds the adult lacks sufficient capacity
to make or communicate significant responsible decisions
concerning his health or safety." This is not one of the
statutory exceptions to OCGA § 24-6-601, which, as
stated above, provides that "every person is
competent to be a witness." (Emphasis supplied.) In
fact, "Rule 601 allows one not mentally competent to
testify, and it assumes that jurors are capable of evaluating
a witness's testimony in light of the fact that he is not
mentally competent, [although] a court has the power to rule
that a witness is incapable of testifying[.]"
Gates, 10 F.3d at 766 (I) (construing Fed.R.Evid.
601, which is materially identical to OCGA § 24-4-601).
Simply put, one may or may not be capable of testifying
regardless of one's need for the appointment of a
guardian. So the trial court was authorized to disregard
Little's verified interrogatory responses even though the
verification preceded the ruling in the guardianship
Other evidence regarding the incident.
determining that Little's interrogatory responses were
not admissible, the trial court held that the plaintiffs had
failed to point to evidence that the defendants had breached
a duty owed to Little, noting that there was "no
first[-]hand knowledge about the subject incident . . . in
the record." Based on our de novo review of the record,
we agree that the plaintiffs have not shown a genuine issue
of material fact on this issue.
plaintiffs argue that they identified in Little's
interrogatory responses witnesses with knowledge of the
incident, including the restaurant employee who gave Little
the pie. But they did not offer ...