Court Discounts Swimmer’s Last Minute Testimony in Negligence Case

Feb 15, 2008

In a majority decision, a panel of judges from a state appeals court in Georgia has affirmed a grant of summary judgment to the Covington Athletic Club and Fitness Center, finding that the plaintiff’s 11-hour testimony that algae contributed to her fall should “not be considered.”
Connie Pinckney fell at Covington as she stepped out of the swimming pool during a swim lesson. Pinckney testified in her deposition that “as I was walking up the steps holding on the rail with my left hand, as soon as I put my right foot down on the deck to come up and stand on the last thing, it slipped.” Pinckney also testified in her deposition that on the day of her fall, she had no idea what made her fall, she saw nothing that could explain her fall, there was no substance on her foot after her fall, and she saw no “slime” on the day of her fall, according to the court.
In fact, the accident report signed by Pinckney after her fall stated that the cause of the accident was “slipping on wet deck.” In her deposition, Pinckney acknowledged that the area where she fell was “sort of” wet. A Covington Athletic Club employee inspected the area after Pinckney’s fall and saw nothing other than water to explain her fall.
Connie and Terry Pinckney ultimately sued the club, leading to the defendant’s motion for summary judgment. Specifically, the defendant claimed that no genuine issue existed as to whether a defect was present at the time Pinckney fell and as to whether any such defect could have caused her fall. In response to the motion for summary judgment, Pinckney submitted an affidavit in which she claimed for the first time that before her fall, she “could feel that the wetness was not merely soaked with water but it had an abnormally slippery wet film, such as slime. I did not expect this.” The trial court applied the rule in Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 30 (2) (343 SE2d 680) (1986), to this new testimony and granted summary judgment in favor of Covington.
The plaintiffs appealed. The panel noted in its opinion that “her affidavit contradicted earlier testimony that she had no idea what made her fall.” The court found that “unless she offered a reasonable explanation for this contradiction, the statement in her affidavit could not be considered. Because she had an opportunity to explain fully her testimony both in her deposition and on the deposition errata sheet provided by the court reporter but failed to do so, her explanation that she had no such opportunity was unreasonable. When her contradictory averments in her affidavit were removed from consideration, the remaining evidence — her claim that she slipped on a wet pool deck while climbing out of the pool — failed to create a genuine issue. A photograph taken 12 days after her fall did not create a genuine issue about the existence of algae. Because the evidence failed to create a genuine issue with regard to both the existence of algae at the time of the fall and whether any such defect could have caused her fall, the trial court properly granted summary judgment.”
Pinckney et al. v. The Covington Athletic Club and Fitness Center; Ct.App.Ga.;
A07A0982, 2007 Ga. App. LEXIS 1273; 2007 Fulton County D. Rep. 3728; 11/30/07


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