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Lawskills.com Georgia Caselaw
LIDSTER v. JONES et al.
70452.
BENHAM, Judge.
Action for damages. Muscogee Superior Court. Before Judge Land.
"[A] non-moving party [may] withstand a motion for summary judgment by submitting sworn testimony averring personal knowledge of the existence of a prior inconsistent statement made by the witness upon whose sworn testimony the movant relies. In the case at bar, appellant's affidavit containing the employee's statement to her that he [knew the dog was vicious and that it had attacked him and others] is sworn testimony of personal knowledge that the employee earlier made a statement inconsistent with the sworn testimony he later gave in support of the motion for summary judgment, i.e., that he [personally had no relationship with the dog and that he was told the dog had jumped on another tenant's child]." Cooperwood v. Auld, 175 Ga. App. 694 (334 SE2d 22) (1985).
Appellees contend that OCGA 51-3-1 is inapplicable to the case before us; rather, that their conduct is to be judged by the standard applied under OCGA 44-7-14. "[W]here the owner has fully parted with possession by rental or lease his liabilities are measured by [OCGA 44-7-141, [OCGA 51-3-1] having no application. [Cits.]" Powell v. United Oil Corp., 160 Ga. App. 810 (287 SE2d 667) (1982). (Emphasis supplied.) Conversely, where the owner has retained control over common areas of an apartment complex to which tenants and others are allowed access, the owner is liable under OCGA 51-3-1 to exercise ordinary care in keeping those common areas safe. Maloof v. Blackmon, 105 Ga. App. 207 (4a) (124 SE2d 441) (1962). Moreover, the degree of care owed to a child may be greater than that which would be owed to an adult under the same circumstances. Massey v. Hilton Heights Park, 121 Ga. App. 214, 218 (173 SE2d 396) (1970). Whether the appellees exercised ordinary care under the circumstances is a jury question, as is whether the owner or his employee had knowledge of the existence of a condition that may have subjected the child to an unreasonable risk of harm. Lake v. Cameron, 64 Ga. App. 501 (13 SE2d 856) (1941). See McCoy v. Gay, 165 Ga. App. 590, 591 (302 SE2d 130) (1983). Since the record indicates that material issues of fact remain to be determined, summary adjudication of the case was inappropriate.
Appellees further argue that Malloy v. Cauley, 169 Ga. App. 623 (314 SE2d 464) (1984), is dispositive of the case before us. Malloy is distinguishable inasmuch as it does not involve or address the question of a landlord's obligation to keep common areas of the leased premises safe.
Robert C. Martin, Jr., for appellees.
Arthur L. Smith III, for appellant.
DECIDED SEPTEMBER 30, 1985 -- REHEARING DENIED OCTOBER 11, 1985 -- CERT. APPLIED FOR.
Thursday May 21 16:45 EDT


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