Georgia Court of Appeals Reverses Grant of Summary Judgment in Wrongful Death Suit

Prior to the day of a possible trial, there can be months –if not years – of legal proceedings designed to remove non-meritorious claims from the court’s consideration or narrow the issues that may ultimately be brought before a jury. Among the most important steps prior to trial is the summary judgment phase. Following sufficient discovery, a party will move for summary judgment and argue, in essence, that even looking at the adduced evidence in a manner favorable to the other party there are no material issues of fact for a jury to decide and that it is entitled to judgment as a matter of law. Considering an examination of the evidence is critical for making this determination, since there will often be arguments concerning what evidence is properly before the court for consideration and what evidence can permissibly be disregarded. This battle is on display in Blake v. Kes, Inc., a recent decision from the Georgia Court of Appeals.
Blake arose from the death of a developmentally disabled adult at a residential habilitation facility in Lithonia, Georgia. The decedent had been diagnosed with several developmental disabilities from birth, including organic personality disorder, moderate intellectual disability, and partial complex seizures. The decedent spent his days at the habilitation facility in accordance with a contract between the facility and his parents. Beyond his aforementioned disabilities, the decedent had a history of absconding from designated areas at the facility and required constant line-of-sight supervision in addition to medication. On the day of his death, the decedent arrived at the facility around 9 AM and upon arrival complained of dizziness and a poor overall feeling. At around noon, while eating lunch, the decedent asked if he could leave and return to his assigned task of cleaning the computer desk, but a caregiver told him he had to finish his meal and then rest thereafter. However, when this caregiver stepped out of the room for a moment, the decedent left the room and walked out of the building. Staff began to track the decedent’s movements, and security camera footage shot at 12:19 PM later showed that the decedent walked alongside a parked van, faltered, leaned into the van, and then fell forward. Shortly afterwards, a facility worker arrived at the decedent, who was unresponsive, breathing faintly, and had a weak pulse. The workers called 911 and performed various resuscitation techniques. Emergency personnel arrived later and continued performing emergency care. However, the decedent remained unresponsive and was pronounced dead at the hospital. The decedent’s cause of death was listed as “cardiac arrest status post likely seizure.”

Following this unfortunate episode, the decedent’s parents brought suit against the habilitation facility and several of its staff members, asserting claims for various forms of negligence, wrongful death, intentional infliction of emotional distress, and breach of contract. Following discovery, both the plaintiffs and the defendants moved for summary judgment. The trial court denied the plaintiffs’ motion and granted the defendants’ motion. In rendering this decision, the trial court excluded from consideration, on procedural grounds, several non-authenticated documents and depositions that had not been filed within 30 days before the hearing. The plaintiffs appealed, arguing that this evidence should have been considered at the summary judgment phase and disregarding it was in error. The Court of Appeals agreed and reversed the grant of summary judgment.
Looking at the trial court record, the Court of Appeals first noted that the defendant had not, as suggested by the trial court’s decision, formally objected to the consideration of unsigned deposition testimony filed by the plaintiff. Moreover, even if the defendant had objected, a trial court is not precluded from considering supporting material on a motion for summary judgment, even if not timely filed, when there are grounds for a finding of harmless error, waiver, estoppel, or acquiescence. See generally Porter Coatings v. Stein Steel & Supply Co., 247 Ga. 631, 632 (278 SE2d 377) (1981). In addition, even though the deposition submitted in support of the motion for summary judgment was not the signed copy, the original signed copy of the deposition had been timely filed with the court. That fact notwithstanding, even if a signed copy had not been filed, “it is not error for a trial court to consider deposition excerpts even if they were not certified copies.” Jacobsen v. Muller, 181 Ga. App. 382, 383 (3) (352 SE2d 604) (1986) (internal quotation marks and citation omitted). Thus, the court held that not considering the deposition was in error and vacated that portion of the trial court’s decision.
Next, the Court of Appeals turned to the non-authenticated documents the plaintiffs had proffered in support of their motion for summary judgment and in opposition to the defendants’ motion. The defendants had objected to consideration of some but not all of these documents, and the trial court reasoned that it needed to disregard the documents because they were “not attached to any affidavit … not self-authenticating, nor … otherwise authenticated.” Although they were not formally authenticated, the Court of Appeals agreed with the plaintiffs that these document could be authenticated by circumstantial evidence, which includes “production of the document during discovery.” USF Corp. v. Securitas Security Svcs. USA, 305 Ga. App. 404, 406 (699 SE2d 554) (2010). In this case, the objectionable documents were created, prepared, and completed by the defendants in the regular course of business and were produced by the defendants in discovery. Accordingly, there was sufficient circumstantial evidence for authenticity such that it was error for the trial court to exclude them from consideration. Thus, the Court of Appeals vacated that portion of the trial court’s decision.
Although the Court of Appeals would go on to hold that the plaintiffs were also not entitled to summary judgment, the decision is still a major victory and helps get the plaintiffs closer to a jury trial. Blake clearly illustrates the important evidentiary and procedural battling that occurs prior to trial. Indeed, potential litigants should find capable counsel with experience at all stages of civil litigation, including handling motions for summary judgment. If you have a potential claim, the Atlanta wrongful death attorneys at the Law Office of Terrence R. Bethune are experienced in all stages of trial court litigation and are ready to help lead you through the process. Feel free to contact us for a free case consultation to assess the strength of your possible claims.

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