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Blake v. KES Inc.

The plaintiffs were not required to establish that their expert met the requirements of O.C.G.A. § § 24-7-702 subsection c 2 D in order to testify as an expert as to causation in their negligence action, because that Code section only applies to medical malpractice claims, and the plaintiffs did not assert a medical malpractice claim.

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This is the second appearance before this Court of this case, which arises from a tort claim by plaintiffs Carl and Yvonne Blake collectively, the plaintiffs following the death of their son in a day habilitation facility. In our previous opinion, we vacated the grant of summary judgment to defendants, KES, Inc., Sandra and Kenneth Browner, Mable Sempler, and Nicole Wise collectively, KES and remanded with direction that the trial court consider a specific expert deposition and certain exhibits in deciding the summary judgment motion.1 Upon remand, after reconsideration of the motion, including those documents, the trial court again granted summary judgment to KES. The plaintiffs appeal, and for the reasons that follow, we vacate the trial court’s order and remand.

In order to prevail on a motion for summary judgment under OCGA § 9-11-56, the moving party must show that there exists no genuine issue of material fact, and that the undisputed facts, viewed in the light most favorable to the nonmoving party, demand judgment as a matter of law. Moreover, on appeal from the denial or grant of summary judgment the appellate court is to conduct a de novo review of the evidence to determine whether there exists a genuine issue of material fact, and whether the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.2

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