DocketNumber： A90A2200
Judges： Andrews, Banke, Beasley, Birdsong, Carley, Pope, Sognier
Filed Date： 3/15/1991
Status： Precedential
Modified Date： 11/8/2024
This is a wrongful-death action brought by appellant to recover for the loss of her husband who died due to complications arising from the treatment of injuries sustained in a fall which occurred in appellees’ store. The appeal is from the grant of appellees’ motion for summary judgment.
Appellant was present in the store with her husband when the incident occurred. After proceeding ahead of him down a narrow aisle, which was lined on both sides with cardboard boxes stacked on wooden pallets, appellant looked back and observed that her husband] had fallen. No one actually witnessed her husband’s fall, and it is ap parent without dispute that there was no foreign substance on the) floor which might have caused it. Appellant testified, however, tha the stacked boxes made the aisle “real close” and that upon close: examination after her husband fell, she observed that the wooden pal-| lets on which the boxes were stacked were “sticking out enough t trip you.”
Appellant’s injured husband was transported by ambulance to local hospital, where it apparently was determined he had sustained fracture of his left femur. He was then transferred by ambulance, ac companied by appellant, to another hospital. Appellant testified thall while enroute to the second hospital, her husband told her he had tripped on a wooden pallet. He died three days later of post-operativ([ complications arising from the surgery performed to reduce his bon fracture. Held:
1. Appellant contends the trial court erred in concluding her hus band’s statement in the ambulance regarding the cause of his fall wai] not admissible as part of the res gestae.
Res gestae declarations are defined by OCGA § 24-3-3 as thos “accompanying an act, or so nearly connected therewith in time as t be free from all suspicion of device or afterthought. ...” The tern| refers to declarations which “obviously spring[] out of the transactio: tending to elucidate it, that [are] not suspected or extracted and thui
“[A] trial judge’s determination that evidence offered as part of the res gestae is [or is not] sufficiently . . . reliable ... to warrant being considered by the jury will not be disturbed on appeal unless that determination is clearly erroneous.” Andrews v. State, 249 Ga. 223, 228 (290 SE2d 71). The trial court was authorized to conclude that, under the attendant circumstances, the husband’s statement in the ambulance, which was made to his wife some 45 minutes after his fall and approximately three days before he died of post-operative complications, was not sufficiently connected in point of time to the incident to be free from all suspicion of afterthought. Thus, the trial court’s inherent ruling in this case excluding the deceased husband’s statement was not “clearly erroneous,” and the trial court did not abuse its discretion in declining to consider it. Moreover, a correct ruling of the trial court will not be reversed regardless of the reason given, if any. Tony v. Pollard, 248 Ga. 86 (1) (281 SE2d 557).
This case is distinguishable from Swain v. C & S Bank of Albany, 258 Ga. 547 (372 SE2d 423), where the trial court denied the motion in limine to exclude the declaration of the deceased. Compare Chrysler Motors Corp. v. Davis, 226 Ga. 221, 226 (173 SE2d 691), cited in Swain, supra, “[t]he principal ingredient in this kind of evidence, required for its admissibility, is trustworthiness. . . . The declaration of the deceased in the Moore case [Moore v. Atlanta Transit System, 105 Ga. App. 70 (2) (123 SE2d 693)] was totally untrustworthy. It was not a part of the res gestae; it was made long after [the] alleged injury; [and] it was very much in the declarant’s interest.”
2. Our distinguished colleagues in the minority note that the rec-lord contains certain hospital records pertaining to the deceased and largue that the information in these records is admissible under OCGA |§ 24-3-4, and is sufficient to preclude the grant of appellee’s motion [for summary judgment. These hospital records contain the following [statements relating to deceased’s admission: “This is a 71-year-old Inale who fell the morning of admission. . . . Patient relates that he Ivas ambulatory in a local hardware store when he tripped over a pallet and incurred his fall.” (Emphasis supplied.) The hospital record piso reflects that “patient was in a local hardware store when he apparently tripped over a pallet and incurred the fall.” (Emphasis supplied.)
I On occasion, the personal history section of hospital reports will contain a “blow-by-blow” description of all alleged facts causing or ■ven remotely contributing to a patient’s injury, and give detailed accounts thereof quite unnecessary to those express purposes, such as
Furthermore for the reasons stated in Division 3 below, the mere statement that deceased “tripped on a pallet” standing alone does not impute any negligence to appellees.
3. Assuming arguendo the evidence contained in the hospital reports is admissible in toto without redaction for summary judgment purposes, the trial court nevertheless did not err in granting summary judgment to appellees. The trial court in granting summary judgment for appellees considered as controlling the precedent of Lane v. Maxwell Bros. &c., 136 Ga. App. 712 (222 SE2d 184) and Rich’s v. Waters, 129 Ga. App. 305 (199 SE2d 623). We agree. See also Tuck v. Marriott Corp., 187 Ga. App. 567 (370 SE2d 795).
The record reflects deceased had patronized the store in the past; he was 71 years of age; no person actually witnessed his fall; deceased was following his wife through the store; appellant wife had walked down “a good walking area” when passing the pallets without incident; and, appellant wife had observed the pallets with fans stacked upon them as she walked by the pallets prior to her husband’s fall. The record also reflects deceased had fallen from vertigo or seizures of dizziness twice in 1985; he had fallen two or three times in the yard when his foot caught on the grass or something; and, deceased had a seizure in February, had fallen in the bathroom on a floor with a little moisture and a rug on it in March, had visited a doctor in April complaining of increased dizziness, and fell in the Western Auto store in May.
The pallets clearly were visible and posed no latent danger. “The duty to warn extends only to a latent danger — not to an open oi obvious one.” Herschel &c. Funeral Home v. Hines, 124 Ga. App. 47 49 (183 SE2d 7); Burnsed v. City of Albany, 184 Ga. App. 297, 299 (361 SE2d 275). It has been opined that to allege a proprietor pos sesses superior knowledge is “simply another way of alleging that h<
We are not without sympathy for the plight of appellant; nevertheless, “ ‘(t)he appellate process affords us no latitude to make adjustments for the . . . heart-rending misfortune of the unlucky.’ ” First Financial Ins. Co. v. Rainey, 195 Ga. App. 655, 664 (394 SE2d 774). Viewing the record in its entirety there exists at best a shadowy semblance of an issue as to appellees’ liability. “Summary judgment law does not require the movant to show that no issue of fact remains but only that no genuine issue of material fact remains; and while there may be some shadowy semblance of an issue, the case may nevertheless be decided as a matter of law where the evidence shows clearly and palpably that the jury could reasonably draw but one conclusion.” (Citations and punctuation omitted.) Strickland v. DeKalb Hosp. Auth., 197 Ga. App. 63, 68 (4) (397 SE2d 576).
Appellant’s other contentions are without merit.
Judgment affirmed.