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Hembree v. Spivey

The decedent had superior knowledge that her boyfriend, who eventually killed her, was dangerous.

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This is the second appearance of this case before this court. In November 2001, 16-year-old Jamie Spivey moved into a house owned by her 18-year-old boyfriend’s mother. On January 14, 2002, the boyfriend, Bradlee Hembree, shot Spivey to death there and killed himself shortly thereafter. The administrator of Spivey’s estate later sued the boyfriend’s mother, Sharon Hembree, and his grandmother for wrongful death. In SpiveyHembree , 268 Ga. App. 485 602 SE2d 246 2004, we affirmed the trial court’s grant of summary judgment to the grandmother as well as its grant of partial summary judgment to Hembree on Spivey’s claim that Hembree had negligently supervised her son. Id. at 487-489 1, 2. On remand, and after further discovery, Hembree moved for summary judgment on the remaining premises liability claim. After the trial court denied the motion, Hembree applied for interlocutory review, which we granted. On appeal, Hembree argues that because Spivey has failed to refute evidence that Jamie had superior knowledge of the risk posed by Bradlee, the trial court erred when it denied Hembree’s motion for summary judgment. We agree and therefore reverse.

“Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. Cits.” Walker v. Gwinnett Hosp. System , 263 Ga. App. 554, 555 588 SE2d 441 2003. A trial court’s grant of summary judgment is reviewed de novo on appeal, construing the evidence in the light most favorable to the non-movant. Ethridge v. Davis , 243 Ga. App. 11, 12 530 SE2d 477 2000. Once the party moving for summary judgment has made a prima facie showing that it is entitled to judgment as a matter of law, the non-movant must then come forward with rebuttal evidence sufficient to show the existence of a genuine issue of material fact. Weldon v. Del Taco Corp ., 194 Ga. App. 174 390 SE2d 87 1990.

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