Morrison v. JH HARVEY CO., INC.

Andrews, Presiding Judge,

dissenting.

Because I believe the trial court correctly determined that plaintiff Morrison had failed to reasonably explain evidentiary discrepancies between her affidavit and her responses to interrogatories as required by Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27 (343 SE2d 680) (1986), I must respectfully dissent.

In addition to the facts set out in the majority, Morrison’s answers to other interrogatories should be considered. Interrogatory Number 4 asked if Morrison had been involved “in any accident, casualty, automobile collision or other occurrence at any time before or after the incident described in your complaint” which resulted in any injury. (Emphasis supplied.) In response, she stated, “None.” Interrogatory Number 11 asked for the names of each person reasonably believed to have information “relevant to the alleged casualty” or supportive of the allegations made in her pleadings. In response, she listed the manager and employees of Harvey, the paramedics who transported her to the hospital, and the treating physicians at the emergency room. She also referred, in her answers to interrogatories, to her “medical bills and records” as evidentiary support of her claims. Although they are not attached to the interrogatory responses in the record here, those responses state that the records are attached. At least two sets of the emergency room medical records are contained in the record here, and every page contains either a computer imprinted notation of the date, July 11, 1998, or a handwritten notation of that date, including the page signed by Morrison.

The affidavit filed by Morrison cannot be considered in a vacuum, as has been done by the majority, in concluding that, in her affidavit testimony, she “testified without vagueness or equivocation” that the fall occurred on July 14. The majority finds the affidavit not contradicted by the interrogatory responses because, although the responses “do tie the date of her fall to the date of her treatment at the emergency room, they do not address the issue of when those events occurred.”

It is unclear how the court reaches this conclusion when, considering all of the interrogatory responses, including Morrison’s own reliance on the hospital records in support of her claim, there is an inherent conflict. As stated in Prophecy Corp., supra at 30 (2), “[i]t is contradictory if one part of the testimony asserts or expresses the opposite of another part of the testimony.”

Morrison’s statement that the accident occurred on July 14 is in direct contradiction of the medical records which she put forth in support of her claim and attached to her answers to interrogatories. Also, Interrogatory Number 21 asked what Morrison was doing 24 hours “immediately prior to and . . . immediately following the incident complained of,” i.e., the fall at Harvey’s. In response, she stated that she had been shopping prior to the incident and that “Plaintiff was at the emergency room, then at home with complete bed rest the 24 hours after the incident occurred.”

The burden rests on the party giving contradictory testimony to offer a reasonable explanation for the contradiction, and whether that has been done is a question of law for the trial judge. Prophecy Corp., supra. Here, as concluded by the trial court, no such reasonable explanation was offered. As in Anglin v. Harris, 244 Ga. App. 140 (534 SE2d 874) (2000), Morrison failed to come forward with evidence contradicting the unequivocal contemporary medical records and business records which showed the accident and treatment occurred on July 11, entitling Harvey to summary judgment on its affirmative defense. Miller v. Kitchens, 251 Ga. App. 225, 227 (553 SE2d 300) (2001).

Decided June 20, 2002. Walter D. Adams, for appellant. W. Douglas Childs, for appellee.

I am authorized to state that Chief Judge Blackburn joins in this dissent.