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Gilstrap v. Head

Plaintiff's interrogatory answer stating that defendant let go of the ladder on which plaintiff stood did not conflict with his deposition testimony, which failed to mention that fact.

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Cecil Gilstrap sued Dean Head, alleging that Head’s negligence proximately caused him to fall while trimming a tree limb on Head’s property. Head denied liability and moved for summary judgment. The trial court granted Head’s motion, ruling that, as to the defense of contributory negligence, the evidence showed that Gilstrap “failed to use ordinary care for his own safety, and in doing so, failed to avoid any negligence of the Defendant which was apparent to him by his own testimony. His negligence was the proximate cause of his injuries.” Gilstrap appeals, arguing that genuine issues of material fact exist for a jury to decide. We agree and reverse.

When ruling on a motion for summary judgment, the opposing party should be given the benefit of all reasonable doubt, and the court should construe the evidence and all inferences and conclusions therefrom most favorably toward the party opposing the motion. Moore v. Goldome Credit Corp., 187 Ga. App. 594, 596 370 SE2d 843 1988. Further, this court conducts a de novo review of the law and the evidence. Desai v. Silver Dollar City, 229 Ga. App. 160, 163 1 493 SE2d 540 1997.

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