These appeals stem from an action brought by Ulysses and Jill Reyes the Reyeses for the wrongful death of their son Aaron Reyes against defendants Clint and Angela McCullough the McCulloughs and Steve and Sara Pullen the Pullens. The Pullens filed a third-party complaint, as amended, against State Farm Fire and Casualty Company State Farm, seeking declaratory judgment of insurance coverage for the Reyeses’ wrongful death action against them. In Case No. A07A0926, the McCulloughs appeal the denial of their motion for summary judgment;1 in Case No. A07A0927, State Farm cross-appeals the denial of its motion for summary judgment.2 For the reasons stated herein, we reverse the decision of the trial court in both cases. This Court’s review of the grant or denial of summary judgment is de novo in order “to determine whether any genuine issue of material fact exists for resolution by a jury.”3 To prevail at summary judgment, 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 pursuant to OCGA § 9-11-56 c. 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. 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. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue.4 A07A0926 Properly viewed, the record reflects that, at the time of Aaron Reyes’s death, four people were living in the Pullens’ home: Sam Pullen, age 13, his father Steve, his mother Sara sister of Clint McCullough, and his grandfather, 91-year-old Alvin McCullough father of Clint and Sara, who suffered from dementia. The house in which they lived was located on property owned by Clint McCullough, who had originally built the house in 2000 for his parents. Clint and Angela McCullough lived in another house on the same property, approximately “a couple hundred yards” away. The Pullen house was constructed on an open plan, with a loft, in order to provide adequate handicapped access. Clint and Sara’s mother, Alvin’s wife, died in November 2002, and at Clint McCullough’s request, the Pullen family moved into the home with Alvin in December 2002, with the understanding that Sara would provide the full-time care her father Alvin needed. No written lease was executed, and the Pullens, who were in some financial difficulties, were not required to pay rent, although they did make one $500 payment to the McCulloughs. The McCulloughs assisted from time to time with Alvin’s care, in order to give Sara respite. Because Alvin was easily upset, the Pullens did not move their furniture into the house; instead, they stored most of their belongings in the basement of the McCulloughs’ house. The McCulloughs had a key to the Pullen house, but they did not enter without permission, even though theirs was an informal “family relationship.”
For Christmas 2003 the Pullens gave their son Sam a .410 shotgun, which Sam kept on an unlocked gun rack upstairs in the loft at their home. The ammunition was stored separately. The Pullens required Sam to keep the gun unloaded in the house. The uncontradicted testimony was that, until the accident occurred on April 24, 2004, the McCulloughs had not been in the loft of the Pullen home at any time after the Pullens had moved into the house in December 2002. Although the McCulloughs were aware that Sam owned a shotgun, they did not know where this weapon was kept, and they did not know that it was loaded and accessible on the day that Aaron died.
