Adler's Package Shop, Inc. v. Parker , 190 Ga. App. 68 ( 1989 )

Deen, Presiding Judge,

dissenting.

The appeal in this case is from the trial court’s order of March 23, 1988, denying defendant’s motion for summary judgment. The court order in part stated: “Assuming arguendo defendant’s agent assumed a duty to protect plaintiff, there exist genuine issues of material fact as to whether the agent acted in a negligent matter [sic].”

The security guard gave a statement to the police within two hours of the incident, stating that he saw one of the two women with a knife and told her to put it away. This testimony was inconsistent with later remarks in his deposition, that he did not see a knife. We cannot say that this inconsistency was a deliberate contradiction of testimony; therefore, construing it in favor of the party opposing the summary judgment, the trial judge did not err in requiring resolution by the jury of these issues as to any breach of duty by the defendant.

The majority relies on Shockley v. Zayre of Atlanta, 118 Ga. App. 672 (165 SE2d 179). Even that case indicates “that a person who intervenes in a personal altercation is bound to exercise ordinary care in his rescue efforts.” Id. at 674. In the cited case, no trained security guard was employed by the business proprietor. In the instant case, one was employed, indicating an additional awareness for a duty to invitees. Reasonable minds may differ whether the security guard who saw the knife did something he should not have done or failed to do something that should have been done, in view of the circumstances and of his knowledge. A jury question is presented.

I am authorized to state that Presiding Judge McMurray joins in this dissent.

Chambers, Mabry, McClelland & Brooks, Rex D. Smith, Stefan E. Ritter, for appellant. Ashman & Zipperer, Charles R. Ashman, Ralph R. Lorberbaum, for appellee.