SECOND DIVISION MERCIER, C. J., MILLER, P. J., and HODGES, J.
NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. https://www.gaappeals.us/rules
March 1, 2024
In the Court of Appeals of Georgia A23A1431. SMITH v. SIX FLAGS OVER GEORGIA II, LP.
MILLER, Presiding Judge.
Mattie Smith, the plaintiff in this personal injury action, appeals from the grant
of summary judgment to the defendant Six Flags Over Georgia II, LP (“Six Flags”).
For the reasons that follow, we affirm.
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. 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. On appeal, we review the grant or denial of summary judgment de novo, construing the evidence and all inferences in a light most favorable to the nonmoving party. (Citations and punctuation omitted.) Washington v. J.D. Royer Wholesale Florist, 275
Ga. App. 407 (620 SE2d 626) (2005).
So viewed, the evidence here shows that Six Flags operates an amusement park
in Austell, Georgia, which contains a ride called “Up Up and Away.” The ride
consists of suspended baskets that resemble hot air balloons and rise and move in a
circle when the ride is in motion. When the ride is not in motion, the baskets hang
approximately seven inches from the ground. There is a natural and minimal swaying
of the baskets as guests exit them, but the baskets do not move upwards unless the ride
is in operation.
On July 21, 2018, Smith, who had been a season pass holder at the park for
multiple years and had previously ridden the ride on multiple occasions, entered the
ride. When the ride stopped and a Six Flags employee opened the door to Smith’s
basket, she stood up, began to exit the basket, and fell to the ground, injuring herself.
Shortly thereafter, Smith told Six Flags employees that the basket swayed as she
exited.
Smith filed this negligence lawsuit against Six Flags in June 2020, alleging,
among other things, that Six Flags employees (1) failed to warn her that the basket
2 might move while she exited it and (2) prematurely restarted the ride while she was
exiting.
At her deposition on April 9, 2021, Smith only recalled one Six Flags employee
being present at the ride from the time she entered it until the time she fell, explaining
that when the ride finished the employee moved away from the area where she had
operated the ride and let Smith out of her basket before letting other guests out. Smith
testified that this employee called for other employees to help once she fell. Smith
explained that she fell because her basket moved “from left to right.” When asked to
describe the movement of the basket, Smith said, “The only thing I know, it moved
from left to right that’s all I know.” Smith’s acquaintance, who had been on the ride
with her, testified via deposition that one Six Flags employee was operating the ride
and that Smith fell because the basket swayed. Smith did not testify at her deposition
that (1) a Six Flags employee prematurely started the ride while she was exiting the
basket, (2) her basket rose around the time of her fall, or (3) she heard any sounds
while exiting the basket. After Smith’s deposition, Six Flags produced videos of the
ride’s start-up process, which show that the ride emits a buzzing noise as it begins
operating and the baskets move upward.
3 Six Flags filed a motion for summary judgment, arguing that (1) Smith failed to
establish that (a) Six Flags had exposed her to an unreasonable risk of harm, or (b) Six
Flags had superior knowledge of any such risk; and (2) Smith was barred from
recovering for her injuries under the doctrines of prior traversal and assumption of the
risk. Six Flags emphasized that Smith had ridden the ride multiple times before her
fall and asserted that the seven-inch step from the basket to the ground and the natural
swaying of the basket as riders exited constituted open, obvious, and safe conditions.
Smith was given until December 5, 2022, to respond to the motion for summary
judgment. On that day, Smith filed both a response and her own affidavit. Smith
pertinently testified in her affidavit that (1) two Six Flags employees were present
when the ride stopped, one of whom was standing at the ride operating station, and
one of whom was letting riders out of the baskets; (2) as Smith was exiting the basket,
she heard the same buzzing noise that is present in the videos of the ride, and when
the buzzing commenced the basket began moving more than it had been; (3) within
seconds of falling, Smith looked at the basket and noticed that it was at least a foot
higher than it had been when the attendant let her out of the basket; and (4) Smith fell
4 due to the upward movement of the basket. Smith did not attempt to explain in her
affidavit why any testimony therein differed from her deposition testimony.
In responding to Six Flags’ motion for summary judgment, Smith relied on her
affidavit and asserted that Six Flags’ arguments were misplaced because the actions
of its employee in raising the basket as she exited constituted active negligence, and
therefore concepts regarding premises liability and superior knowledge of a hazard
were irrelevant.
Faced with Smith’s affidavit and response to its summary-judgment motion, Six
Flags argued that because the affidavit contradicted Smith’s deposition testimony and
she had offered no reasonable explanation for the contradictions, the contradictory
testimony could not be considered in order to defeat summary judgment. Specifically,
Six Flags argued that in her affidavit Smith provided testimony that contradicted her
deposition by stating that (1) two Six Flags employees were present when she fell, (2)
immediately after falling, she noticed that the basket was at least a foot higher than it
should have been, and (3) she heard a buzzing noise as she exited the basket, and when
she heard the buzzing the basket began to move more significantly. Six Flags argued
5 that in the absence of the contradictory affidavit testimony, there was no evidence that
the basket rose as Smith was exiting it.
Smith’s counsel responded that her affidavit testimony did not contradict her
deposition testimony, and she had a reasonable explanation for any contradictions
because she had no reason to believe the buzzing noise was significant or to associate
it with the movement of her basket until Six Flags produced a video of the ride’s start-
up process.
Following a hearing, the trial court issued an order granting Six Flags summary
judgment. As an initial matter, the court stated that its “primary inquiry” was
“whether Six Flags, as the premises owner/occupier, had superior knowledge of an
unreasonably dangerous condition and failed to warn Smith of it.” Significantly, the
court found that “[t]he testimony in [Smith’s] affidavit is contradictory to her
deposition testimony and alters her previous testimony,” and stated that “any
contradictory testimony has been excluded and not considered.” The court
concluded, “[a]fter disregarding the contradictory testimony,” that Smith had equal
knowledge of the propensity of the basket to move as she exited it and that the
allegedly hazardous condition was open and obvious. The court stated that the baskets
6 sit approximately seven inches off of the ground during loading and unloading and that
Smith had ridden the ride many times before she fell. This appeal followed.
1. Smith argues that the trial court erred by granting Six Flags summary
judgment when its motion for summary judgment did not address her claims regarding
the active negligence of its employees in restarting the ride and raising the basket as
she exited.1 This argument lacks merit.
Six Flags argued in its motion for summary judgment that Smith could not
establish that it exposed her to an unreasonable risk of harm or that the ride was unsafe
at the time of the incident. While Six Flags did not specifically discuss Smith’s
allegation in her complaint that Six Flags’ employees prematurely restarted the ride
as she exited it, Six Flags’ arguments encompassed such an allegation. See Cowart v.
Widener, 287 Ga. 622, 623 (1) (697 SE2d 779) (2010) (“[T]he rule with regard to
summary judgment is that a defendant who will not bear the burden of proof at trial
need not affirmatively disprove the nonmoving party’s case, but may point out by
reference to the evidence in the record that there is an absence of evidence to support
any essential element of the nonmoving party’s case.”) (citation and punctuation
1 We have addressed Smith’s arguments in a different order than she has presented them on appeal. 7 omitted). Indeed, when Six Flags filed its motion there was no evidence that the ride
had been prematurely restarted, so the motion naturally did not discuss such evidence.
And when Smith provided her affidavit claiming that the ride was prematurely
restarted, Six Flags promptly addressed that claim and argued that it could not be
considered, and Smith was then given the opportunity to respond to Six Flags’
argument. Thus, the substance and timing of Six Flags’ arguments below provide no
basis for reversing the trial court’s ruling. See Giddens v. Med. Center of Central Ga.,
353 Ga. App. 594, 599 (1) (839 SE2d 31) (2020) (non-movant was not “blindsided”
by argument of movant for summary judgment, where the argument was clearly set
out in the movant’s renewed motion for summary judgment, which was filed before
the hearing on the motion).
2. Smith argues that the trial court erred by (a) excluding without specification
portions of her affidavit testimony, and (b) failing to consider the explanation for any
contradictions between her affidavit testimony and her deposition testimony. Smith,
however, has failed to establish any reversible error in these respects.
“The ‘self-contradictory testimony rule’ has been firmly entrenched in Georgia
law for well over a century.” Thompson v. Ezor, 272 Ga. 849, 851 (1) (536 SE2d 749)
8 (2000). Under this rule,2 “[t]he testimony of a respondent on summary judgment is
to be construed against her where it is self-contradictory, vague, or equivocal.” Anglin
v. Harris, 244 Ga. App. 140, 142 (1) (534 SE2d 874) (2000). Testimony “is
contradictory if one part of the testimony asserts or expresses the opposite of another
part of the testimony.” Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 30 (2) (343
SE2d 680) (1986). “[T]he issue of whether a party-witness’s testimony is inconsistent
is to be determined, not by individual words or phrases alone, but by the whole
impression or effect of what has been said.” Price v. Thapa, 323 Ga. App. 638, 640
(745 SE2d 311) (2013). Whether the testimony of a party is contradictory “is a
question for the [trial] judge to decide.” Prophecy Corp., supra, 256 Ga. at 30 (2).
“[W]henever the only evidence in support of a claim . . . is the favorable portion of a
party’s self-contradictory testimony,” the other party is entitled to summary
judgment. (Citation omitted.) James v. Ga. Dept. of Public Safety, 337 Ga. App. 864,
869 (3) (789 SE2d 236) (2016).
2 The rule is also referred to as “the Prophecy rule,” referring to Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27 (343 SE2d 680) (1986). See, e.g., Thompson, supra, 272 Ga. at 851 (1). 9 However, “even where testimony is contradictory, if a reasonable explanation
is offered for the contradiction, the testimony will not be construed against the party-
witness. The burden rests upon the party giving the contradictory testimony to offer
a reasonable explanation, and whether this has been done is an issue of law for the trial
judge.” (Emphasis supplied.) Prophecy Corp., supra, 256 Ga. at 30 (2). “[I]f no
explanation is given for the conflict in testimony . . . , the trial court must eliminate the
favorable portions of the contradictory testimony.” (Citation and emphasis omitted.)
Stone v. Dayton Hudson Corp., 193 Ga. App. 752, 755 (2) (388 SE2d 909) (1989).
(a) Smith first asserts that the trial court erred in failing to specify what parts
of her affidavit testimony it deemed contradictory. We disagree.
While the trial court could have been more explicit in making its findings, it is
apparent from the record what portions of Smith’s affidavit the court deemed
contradictory. Six Flags argued that Smith’s affidavit was contradictory in stating that
(1) two Six Flags employees were present when she fell, (2) immediately after falling,
she noticed that the basket was at least a foot higher than it should have been, and
(3) she heard a buzzing noise as she exited the basket, and when she heard the buzzing
the basket began to move more significantly. In its order granting Six Flags summary
10 judgment, the court clearly agreed with Six Flags and disregarded any evidence in
Smith’s affidavit that would show that the ride prematurely restarted or that the
basket rose as she exited it. Specifically, the court found that “[t]he testimony in the
affidavit is contradictory to [Smith’s] deposition testimony,” concluded that Smith
had equal knowledge of the propensity of the basket to move as she exited it, and
stated that the basket was approximately seven inches off of the ground when she
exited and that she had previously ridden the ride many times. Thus, it is apparent
what portions of the affidavit the court deemed contradictory. See Cottingham v. Sapp,
344 Ga. App. 651, 653 (2) (811 SE2d 442) (2018) (“Although the trial court here did
not expressly address this issue in his summary judgment order, his ruling in [the
defendant’s] favor implies that he disregarded [the plaintiff’s] allegedly contradictory
testimony.”); compare Sikes v. Great Lakes Reinsurance (UK) PLC, 321 Ga. App. 136,
139 (1) (741 SE2d 263) (2013) (vacating and remanding for the trial court to determine
whether the self-contradictory testimony rule applied, where its order was entirely
unclear as to whether it made “any direct or express determinations concerning . . .
whether [the non-movant on summary judgment] presented contradictory
testimony”).
11 Smith also asserts that her deposition testimony and her affidavit testimony
were not contradictory as to (i) how many Six Flags employees were at the ride,
(ii) whether the basket rose as she exited it, and (iii) whether she heard a buzzing noise
as she exited.
(i) Regarding the number of Six Flags employees at the ride, Smith asserts that
her statement in her deposition testimony that she only recalled one employee being
present related to the time before she entered the ride or while the ride was in
operation, while her affidavit testimony stated that two employees were present when
the ride finished. We conclude that Smith’s testimony was contradictory on this issue.
Viewing Smith’s deposition in its entirety, it is clear that she testified that there was
only one employee present from the time she entered the ride until the time she fell.
Smith also indicated at her deposition that apart from her family members and the ride
operator, she was not aware of the identities of anyone who witnessed her fall. Thus,
the trial court did not err in disregarding Smith’s affidavit testimony that two
employees were present when she fell.
(ii) Regarding whether the basket rose as she exited it, Smith asserts that she
was not asked at her deposition about the location of the basket after her fall and that
12 her deposition testimony and her affidavit testimony were consistent as to whether she
detected the basket rising as she exited.
We conclude that Smith’s testimony was contradictory on this issue. Smith
stated during her deposition that she fell because her basket moved “from left to
right,” and that “[t]he only thing” she knew was that the basket moved laterally.
Smith claimed in her affidavit that just after her fall she noticed that the basket was at
least a foot higher than it had been when the attendant let her out of the basket and
that she fell due to the upward movement of the basket.
In Hallberg v. Flat Creek Animal Clinic, P.C., 225 Ga. App. 212, 213 (483 SE2d
671) (1997), the plaintiff testified during her deposition that she fell on a ramp because
it was too steep and that she did not try to grab the ramp’s handrail. In a subsequent
affidavit, the plaintiff stated that she would have used the handrail had it been safe to
use and that had she been able to grab a stable handrail her fall would have been
avoided. Id. at 213-214. This Court concluded that the plaintiff’s testimony regarding
the cause of her fall was contradictory and subject to the self-contradictory testimony
rule. Id. at 214-215 (1), 215-216 (2) (a). We find Hallberg controlling here, because
Smith’s deposition testimony that her fall was caused by the lateral motion of the
13 basket was contradicted by her subsequent affidavit testimony that her fall was caused
by the basket’s upward motion.
(iii) To the extent the trial court found that Smith’s affidavit testimony that she
heard a buzzing noise as she exited the basket contradicted her deposition testimony,
the court appears to have erred because she did not testify in her deposition about the
presence or absence of any sounds as she exited. However, as discussed in Division
4 below, even if this affidavit testimony is considered, Six Flags is still entitled to
summary judgment because Smith has failed to provide anything other than
speculation that the ride was prematurely restarted. Therefore, any error by the trial
court in this regard provides no basis for reversal.
(b) Smith asserts that the trial court erred in failing to evaluate the reasons for
any contradictions in her testimony and that she provided a reasonable explanation for
any contradictions because she only realized that the basket had been moving upward
at the time of her fall when she received, after her deposition, the videos from Six
Flags depicting the ride’s operation. We disagree. The trial court did not evaluate the
reasons for the contradictions in Smith’s testimony because Smith herself did not
offer any explanation for them. Specifically, Smith did not attempt in her affidavit to
14 offer any explanation regarding her contradictory testimony as to the number of
employees present at the ride or her contradictory testimony that the basket rose as
she exited.
While Smith’s counsel has provided arguments as to how the videos
purportedly refreshed her memory, such arguments cannot avoid application of the
self-contradictory testimony rule. In DirecTV, LLC v. White, 355 Ga. App. 404, 407
(1) n.3 (844 SE2d 289) (2020), this Court emphasized that the party, as opposed to
the party’s counsel, must offer a reasonable explanation for any contradictions in their
testimony. There, we explained that opinions or arguments by a party’s counsel that
the party was nervous, elderly, and under stress during her deposition, or that the
party misspoke, could not be used to overcome the self-contradictory testimony rule.
Id.; see also Prophecy Corp., supra, 256 Ga. at 28 (1) (“A party knows what he has
sworn. If he has discovered error, it can be explained in his affidavit.”) (citation
omitted). Similarly, because Smith herself has not offered any explanation for her
contradictory testimony as to the number of employees at the ride or the movement
of the basket, the trial court did not err in disregarding such testimony. See Ngheim v.
Allstate Ins. Co., 292 Ga. App. 588, 591 (664 SE2d 925) (2008) (because the parties
15 did not offer any explanation for their contradictory testimony, the trial court was
required to construe the contradictions against them).
3. Smith argues that the trial court failed to view the evidence in the light most
favorable to her as the plaintiff. However, in its order granting Six Flags summary
judgment the court specifically noted that it was required to view the facts in the light
most favorable to the non-moving party. Indeed, “the trial judge is presumed to know
the law and presumed to faithfully and lawfully perform his or her duties. We will not
presume the trial court committed error where that fact does not affirmatively appear
in the record.” (Citation and punctuation omitted.) Modi v. India-American Cultural
Assn., Inc., 367 Ga. App. 572, 576 (5) (886 SE2d 378) (2023). Smith has failed to show
that the trial court applied the incorrect standard.
4. Smith argues that the trial court erred by granting summary judgment to Six
Flags on the basis of equal knowledge because the evidence showed that the basket
rose while she exited it and she had not experienced such movement before. We
disagree and conclude that, once Smith’s contradictory testimony was disregarded,
Six Flags was entitled to summary judgment because the evidence failed to show that
the basket rose while she exited.
16 “In order to have a viable negligence action, a plaintiff must satisfy the elements
of the tort, namely, the existence of a duty on the part of the defendant, a breach of
that duty, causation of the alleged injury, and damages resulting from the alleged
breach of the duty.” (Citation omitted.) Elder v. Hayes, 337 Ga. App. 826, 828-829
(788 SE2d 915) (2016).
Although questions of causation are generally for the jury, nevertheless, there must be sufficient evidence to create a jury question on the issue of causation. Proof of proximate cause requires a showing of a legally attributable causal connection between the defendant’s conduct and the alleged injury. Therefore, the plaintiff must introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a cause in fact of the result. However, a mere possibility of such causation is not enough; and when the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to grant summary judgment for the defendant.
(Citations and punctuation omitted.) Id. at 829. “Guesses or speculation which raise
merely a conjecture or possibility are not sufficient to create even an inference of fact
for consideration on summary judgment.” (Citation omitted.) Hill v. Jackson, 336 Ga.
App. 679, 681 (783 SE2d 719) (2016). Thus, “[w]here the cause of the fall . . . is mere
speculation, guess, or conjecture, there is not even a scintilla of evidence to create a 17 material issue of fact for jury determination, because such conjecture has no probative
value to create an issue of fact.” Moore v. Teague, 255 Ga. App. 220, 222 (564 SE2d
817) (2002).
Here, Smith’s claim that she fell because the ride was prematurely restarted and
the basket rose as she exited it fails to go beyond mere speculation, guess, or
conjecture. As discussed in Division 2 above, the trial court properly disregarded
Smith’s affidavit testimony that when she exited the basket, the basket rose and there
were two employees present. After disregarding the affidavit testimony, Smith’s
deposition testimony remained, including her testimony that she fell because the
basket moved laterally and that the one employee who was present was letting guests
out of their baskets when she fell and was therefore not near the console that started
the ride. In the face of this testimony, Smith’s evidence that she heard a buzzing noise
associated with the starting of the ride does not afford a reasonable basis for
concluding that it is more likely than not that the ride was prematurely restarted. See
Moore, supra, 255 Ga. App. at 220-221 (where plaintiff assumed that she fell due to a
wet floor, but she did not actually know if the floor was wet, the defendant was
entitled to summary judgment).
18 Smith does not challenge the trial court’s conclusion that she had equal
knowledge of the propensity of the basket to move laterally as she exited it or that the
approximately seven-inch drop was an open and obvious hazard. Indeed, given
Smith’s prior experience on the ride, any such challenge would lack merit, and Six
Flags was entitled to summary judgment. See Cottingham, supra, 344 Ga. App. at 652-
653 (2) (when the plaintiff’s contradictory testimony was construed against her, the
undisputed evidence showed that her knowledge of the hazard that caused her fall was
equal or superior to the defendant’s knowledge); Hallberg, supra, 225 Ga. App. at 215-
216 (2) (a) & (b) (after disregarding the plaintiff’s contradictory testimony that an
unsafe handrail caused her fall, the defendant was entitled to summary judgment
because the plaintiff had previously negotiated the ramp multiple times and the
steepness of the ramp was open and obvious to her).
5. Finally, Smith argues that the trial court erred by not striking the affidavit of
Six Flags’ Rides & Aquatics Manager regarding the operation of the ride because the
affidavit was untimely and the manager was not qualified to provide the information
stated therein. However, there is no indication that the court considered the affidavit,
and even without the affidavit the evidence established the height of the baskets, the
19 baskets’ natural swaying during unloading, and the presence of only one employee
who was letting guests out of the baskets when Smith fell. As discussed above in
Division 4, such evidence entitled Six Flags to summary judgment. Accordingly, this
argument provides no basis for reversal, and for all of the reasons stated above, we
affirm the trial court’s grant of summary judgment.
Judgment affirmed. Mercier, C. J., and Hodges, J., concur.