Motions for Summary Judgment in Georgia PI Litigation
On this page
- What OCGA 9-11-56 Provides
- The Movant’s Burden
- What the Response Must Contain
- When a Party’s Own Testimony Conflicts
- The Jury’s Role and the Standard of Review
- Judgments That Do Not End the Case
- The Statute at a Glance
- Frequently Asked Questions
- Sources and Legal Authorities
- Disclaimer
- Related posts:
A motion for summary judgment asks a Georgia court to end a claim, or part of one, on the paper record without a jury, and a plaintiff who cannot point to evidence on even one essential element can lose the claim on that motion alone. The procedure is in OCGA 9-11-56, and three decisions supply the working rules: Lau’s Corp. v. Haskins on the defendant’s burden and the plaintiff’s response, Prophecy Corp. v. Charles Rossignol, Inc. on a party’s self-contradictory testimony, and Reed v. Carolina Casualty Insurance Co. on the standard of review and the role of the jury.
What OCGA 9-11-56 Provides
A plaintiff may move “at any time after the expiration of 30 days from the commencement of the action or after service of a motion for summary judgment by the adverse party,” and a defending party may move “at any time”; each may seek judgment on “all or any part” of the claim (OCGA 9-11-56(a), (b)). The motion “shall be served at least 30 days before the time fixed for the hearing,” and the adverse party “prior to the day of hearing may serve opposing affidavits” (OCGA 9-11-56(c)).
The standard is in the same subsection. Judgment “shall be rendered forthwith 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.” The subsection also preserves the jury: “nothing in this Code section shall be construed as denying to any party the right to trial by jury where there are substantial issues of fact to be determined.” A summary judgment “may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damage.”
For example, imagine a defendant who serves a motion for summary judgment on June 1, 2027. On a simple count of days, the earliest hearing date under the 30-day rule is July 1, 2027, and the plaintiff may serve opposing affidavits at any point before the day of that hearing.
The Movant’s Burden
Lau’s Corp. v. Haskins, 261 Ga. 491 (1991), states the framework. The moving party “must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.” A defendant may do this “by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case.” When that is shown, the claim “tumbles like a house of cards,” and “[a]ll of the other disputes of fact are rendered immaterial.”
The decision also addresses what a defendant need not do: “A defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party’s case; instead, the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case.” In its fourth division the Supreme Court repeated that a party without the burden of proof at trial “need not conclusively prove the opposite of each element of the non-moving party’s case,” and it overruled “anything to the contrary.”
The facts show how the framework operated. Two patrons were robbed in a restaurant parking lot and alleged inadequate warning and security. The restaurant moved with the owner’s affidavit on the lot’s lighting and patrols, and the Haskinses answered with affidavits about an earlier purse snatching and the area’s crime. The Supreme Court held that the evidence of a duty was weak but sufficient for a jury, and then held that no reasonable jury could find a breach: “plaintiffs may not simply point to their injuries as evidence that the landowner failed to take reasonable precautions to protect them,” and the Haskinses had offered nothing showing that the lot fell below reasonable security standards, such as lights that did not work, dark places to hide, or neighboring businesses that had found guards necessary. The court reversed the Court of Appeals, which had reversed the trial court’s grant of summary judgment to the restaurant, and concluded that the “defendant was entitled to summary judgment as a matter of law.” One Justice dissented in part.
What the Response Must Contain
Under Lau’s Corp., once the movant meets its burden “the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue.” OCGA 9-11-56(e) says the same thing in the statute’s words: an adverse party “may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this Code section, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.”
The same subsection sets the form of an affidavit. Supporting and opposing affidavits “shall be made on personal knowledge, shall set forth such facts as would be admissible in the evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein,” and sworn or certified copies of papers referred to in an affidavit must be attached or served with it.
When a Party’s Own Testimony Conflicts
Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27 (1986), is a contract dispute rather than an injury case: a former manufacturer’s representative and the representative’s company sued for compensation allegedly due under an employment contract, and the defense was accord and satisfaction because the representative had cashed a check. The question was whether a conversation about the deductions took place before or after the check was cashed. On deposition the representative first testified to not recalling whether it came before or after, and then answered yes to a question asking whether the check was deposited before the discussion. A later affidavit from the representative stated that “[s]ince the deposition I have reviewed my notes and records and have otherwise refreshed my recollection, and I now know I had this conversation before I deposited the check.”
The Supreme Court set out the rule for a party’s own testimony. Whether testimony is contradictory “is a question for the judge to decide,” and “[i]t is contradictory if one part of the testimony asserts or expresses the opposite of another part of the testimony.” The question does not turn on intent: the issue is not “whether the party-witness’ second statement intentionally contradicts his first.” A contradiction is not fatal by itself: “even where testimony is contradictory, if a reasonable explanation is offered for the contradiction, the testimony will not be construed against the party-witness. The burden rests upon the party giving the contradictory testimony to offer a reasonable explanation, and whether this has been done is an issue of law for the trial judge.” The court explained the purpose by quoting an earlier Court of Appeals decision (Chandler v. Gately), which warned that without the rule “any opposing party may, by the simple device of filing conflicting affidavits, get the motion denied.”
Applying that rule, the court held that the deposition and the affidavit were contradictory, “but a reasonable explanation of the contradiction is offered in the affidavit.” The favorable portion of the testimony was therefore not construed against the witness, a genuine issue of material fact remained, and the grant of summary judgment to the defendant was improper. The Supreme Court affirmed the Court of Appeals’ reversal. In a footnote, the court said the case “deals only with ‘self-contradictory’ testimony,” not with vague or equivocal testimony.
The Jury’s Role and the Standard of Review
Even in a negligence case a court may decide the question, but only in a narrow class. Lau’s Corp. states that the standard of care and its breach are for the jury except “in plain and palpable cases where ‘reasonable minds cannot differ as to the conclusion to be reached'” (quoting Pound v. Augusta National). Reed v. Carolina Casualty Insurance Co., 327 Ga. App. 130 (2014), repeats the point in a wrongful death action in which the trial court granted summary judgment on the ground that the undisputed facts showed the decedent was at least 50 percent responsible under OCGA 51-12-33(g). The Court of Appeals reversed, agreeing with the plaintiffs that the jury should have considered the issue. It stated the standard of review: “We review a grant or denial of summary judgment de novo and construe the evidence in the light most favorable to the nonmovant.” And it quoted the rule from Bussey v. Dawson that “questions of negligence, diligence, contributory negligence and proximate cause are peculiarly matters for the jury, and a court should not take the place of the jury in solving them, except in plain and undisputable cases.”
Judgments That Do Not End the Case
OCGA 9-11-56(d) covers a motion that does not dispose of the whole case. The court “shall, if practicable, ascertain what material facts exist without substantial controversy and what material facts are actually and in good faith controverted,” and then “make an order specifying the facts that appear without substantial controversy, including the extent to which the amount of damages or other relief is not in controversy.” At trial “the facts so specified shall be deemed established, and the trial shall be conducted accordingly.” Together with the liability-alone provision of subsection (c), this lets a court narrow a trial without ending it.
The Statute at a Glance
| Subsection | What it governs |
|---|---|
| 9-11-56(a), (b) | Who may move and when |
| 9-11-56(c) | 30 days' service before hearing, opposing affidavits, the standard, jury trial, liability alone |
| 9-11-56(d) | Facts established when the case is not fully adjudicated |
| 9-11-56(e) | Form of affidavits and the requirement to set forth specific facts |
| 9-11-56(f) | Continuance when affidavits are unavailable |
| 9-11-56(g) | Expenses and contempt for affidavits in bad faith |
| 9-11-56(h) | Appeal of grants and denials |
Frequently Asked Questions
What if the evidence needed to oppose the motion is not yet available?
If the opposing party’s affidavits show reasons why facts essential to the opposition cannot yet be presented, the court may “refuse the application for judgment,” may “order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had,” or may make “such other order as is just” (OCGA 9-11-56(f)). The statute leaves the choice to the court.
What happens if an affidavit is filed in bad faith or to delay?
The court “shall forthwith order” the party employing it to pay the other party’s reasonable expenses caused by the filing, including reasonable attorney’s fees, and “any offending party may be adjudged guilty of contempt” (OCGA 9-11-56(g)).
Can the record be expanded after the affidavits are filed?
“The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits,” and all affidavits must be filed with the court and served on the opposing parties (OCGA 9-11-56(e)).
Can a grant or denial of summary judgment be appealed?
“An order granting summary judgment on any issue or as to any party shall be subject to review by appeal,” and an order denying it is “subject to review by direct appeal in accordance with subsection (b) of Code Section 5-6-34” (OCGA 9-11-56(h)).
Sources and Legal Authorities
- OCGA 9-11-56(a) through (h)
- Lau’s Corp. v. Haskins, 261 Ga. 491 (1991)
- Pound v. Augusta National, 158 Ga. App. 166 (1981) (as quoted in Lau’s Corp. v. Haskins)
- Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27 (1986)
- Chandler v. Gately, 119 Ga. App. 513 (1969) (as quoted in Prophecy Corp. v. Charles Rossignol, Inc.)
- Reed v. Carolina Casualty Insurance Co., 327 Ga. App. 130 (2014)
- Bussey v. Dawson, 224 Ga. 191 (1968) (as quoted in Reed v. Carolina Casualty Insurance Co.)
- OCGA 51-12-33(g)
Disclaimer
This article provides general information about summary judgment under Georgia law. It is not legal advice and does not create an attorney-client relationship. How the standard applies depends on the specific record, the claims at issue, and current Georgia law. Anyone involved in such a motion should consult a licensed Georgia attorney about the particular situation.