plaintiff’s deposition testimony that she slipped on a combination of moisture from misty conditions and oil from cars previously parked there was pure speculation, supported only by her statement that she had knowledge that when there was moisture in the air and on the pavement that oil from parking lots and asphalt rise straight to the top
How later courts described this case
- plaintiff’s deposition testimony that she slipped on a combination of moisture from misty conditions and oil from cars previously parked there was pure speculation, supported only by her statement that she had knowledge that when there was moisture in the air and on the pavement that oil from parking lots and asphalt rise straight to the top
- speculation which raises merely a possibility is insufficient to create even an inference of fact for consideration on summary judgment
- speculation which raises a possibility is insufficient to create an issue of fact precluding summary judgment
Written by the judges who cited it.
The opinion
McMurray, Presiding Judge,
dissenting.
I respectfully dissent from the affirmance of summary judgment granted to the defendant landowners in plaintiff I. Stanley Brown’s loss of consortium action arising from personal injuries sustained by plaintiff’s wife, Debra Brown, when she slipped on the wet pavement of defendants’ parking lot on a misty May afternoon, breaking her left ankle.
In my view, the majority should not have applied the rule of Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27 ( 343 SE2d 680 ), because Debra Brown’s affidavit gave a perfectly consistent explanation for the cause of her fall, namely, a presence of oil on top of wet asphalt. Consequently, “when the deposition is, in its entirety, construed most strongly in [plaintiff’s] favor, there is no conflict with the subsequent affidavit.” Shackelford v. DeKalb Farmer’s Market, 180 Ga. App. 348, 350 (2), 351 ( 349 SE2d 241 ). In the case sub judice, Debra Brown’s credibility remained a matter peculiarly and exclusively for the jury to determine. OCGA § 24-9-80; Ryder v. Schreeder, 224 Ga. 382 (2), 386 ( 162 SE2d 375 ). I cannot agree that the majority is correct in dismissing, as speculative, Debra Brown’s opinion that she slipped because the asphalt pavement was made especially slick
*322 Decided February 22, 1996.
Sell & Melton, Mitchell P. House, Jr., Robert D. McCullers, for appellant.
Miller & Towson, Craig N. Cowart, for appellees.
with oily residue brought to the surface by the misty weather. Debra Brown is competent to testify about this phenomenon as a matter of her experience. See, e.g., Wood v. Morris, 109 Ga. App. 148, 151 (3) ( 135 SE2d 484 ). The trier of fact could very well find that any such oily patch was nonexistent or was not a breach of defendants’ duty to exercise ordinary care to keep their premises safe for invitees, or that there was no causal relationship between plaintiff’s wife’s injury and the circumstance that it occurred on defendants’ property. Smith v. Clifford H. Pryor & Assoc., 193 Ga. App. 523, 524 ( 388 SE2d 383 ). But that determination is for the jury and not this Court. I respectfully dissent.