Parker v. Hovers

564 S.E.2d 795, 255 Ga. App. 184, 2002 Fulton County D. Rep. 1353, 2002 Ga. App. LEXIS 560
CourtCourt of Appeals of Georgia
DecidedApril 30, 2002
DocketA02A0028
StatusPublished
Cited by5 cases

This text of 564 S.E.2d 795 (Parker v. Hovers) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Parker v. Hovers, 564 S.E.2d 795, 255 Ga. App. 184, 2002 Fulton County D. Rep. 1353, 2002 Ga. App. LEXIS 560 (Ga. Ct. App. 2002).

Opinion

JOHNSON, Presiding Judge.

Lou Dean Parker appeals from the grant of summary judgment to Monument Sales, Inc. and its president, James Hovers. Parker sued Monument Sales and Hovers for negligence after a cemetery monument which had been installed by Monument Sales and then removed and placed upon a wall by a third party fell on Parker’s foot as she visited her sister’s grave two years after Monument Sales’ installation. We affirm the grant of summary judgment to the defendants.

The undisputed evidence shows that Parker purchased a two-piece grave monument for her sister from Monument Sales in 1996. Hovers and a Monument Sales employee installed the monument at Parker’s sister’s grave site in March 1996. To install the monument, the men dug a shallow ditch, poured a concrete foundation, set the bottom section (base) of the monument in the concrete, placed the top piece (die) of the monument on top of the base, tilted the die to one side, squeezed joint compound between the two sections, tilted the die to the other side, set the die in place, and then trimmed off the excess compound. They cleaned off the monument and left. Monument Sales had not agreed to maintain, move, or reinstall the monument.

Parker’s sister was still alive at the time of the installation, but she died in December 1997. In June 1998, when Parker went to visit her sister’s grave site, she noticed that the monument was sitting atop a brick wall near the grave. Parker reached over and rested one [185]*185hand on the monument as it sat on the wall. The monument fell on and severely injured Parker’s foot. Parker does not know who moved the monument from the grave site or when, but she believes that she first noticed it had been moved when she attended her sister’s burial in 1997. Parker assumes that the persons who dug the grave moved the monument on behalf of the funeral home.

Monument Sales and Hovers (collectively “Monument Sales”) moved for summary judgment claiming that there was no evidence that Parker’s injuries were caused by any act or omission of Monument Sales. More specifically, Monument Sales argued that the movement of the monument by a third party and then Parker’s touching of the monument as it sat on a wall amounted to intervening, independent acts and that Monument Sales cannot be held liable for the injury.

In response to the summary judgment motion, Parker urged that genuine issues of material fact remain regarding whether Monument Sales installed the monument properly and whether the moving of the monument was a foreseeable circumstance which Monument Sales should have anticipated. In support of her brief, Parker submitted an affidavit of a funeral director in which he stated that he installed cemetery monuments, that it was standard in the industry to use spacers between the base and die of a monument, that the spacers would cause a stronger bond between the two sections, that it is foreseeable that a monument installed before a person dies will later be moved when the burial occurs, and that the bond on an improperly installed monument will weaken or deteriorate. The witness stated that an attached brochure (prepared by Elberton Granite Association, Inc.) on the techniques for erecting cemetery monuments represents the standards for the industry.

Contrary to the witness’ contentions, however, the brochure states that the usual procedure utilized in installing the monuments is to use a setting compound, although the brochure does recommend the use of certain types of “space age” spacers or cushions between the two pieces of monument, along with setting compound. The brochure also notes, contrary to the witness’ position, that monument installation “is a permanent installation — once the monument is in place, more than likely it will never be set again.” Finally, the brochure states that “it is not intended to claim that the [installation] methods set forth herein are the only, or the best, methods that can be employed. It is hoped that the suggestions will cause monument dealers and cemeteries to take a special look at the appearance of the memorials to see if room for improvement exists.” The brochure notes that its purpose is to enhance the appearance of cemeteries; it does not address safety issues.

[186]*186The trial court granted Monument Sales’ motion for summary-judgment, noting that Monument Sales installed the monument according to trade customs. The trial court added that there was a lack of evidence as to the condition of the monument at the time the gravediggers moved it, how they moved it, and how they secured it at the new location so that it would not fall. The court concluded that there was no evidence that Monument Sales’ method of installing the monument was the cause of the monument falling on Parker’s foot.

A party is entitled to summary judgment when he can show that any essential element of the opposing party’s case is missing and incapable of proof.1 To state a cause of action for negligence in Georgia, a plaintiff must show (1) a legal duty to conform to a standard of conduct raised by law for the protection of others against unreasonable risks of harm; (2) a breach of this standard; (3) a legally attributable causal connection between the conduct and the resulting injury; and (4) loss or damage to plaintiff’s legally protected interest resulting from the breach.2 Here, it is clear that there is an absence of evidence that Monument Sales breached a standard of conduct and that it was the proximate cause of Parker’s injury.

1. Breach of standard of conduct. No matter how innocent the plaintiff may be, she is not entitled to recover unless the defendant did something that it should not have done or failed to do something that it should have done pursuant to the duty owed the plaintiff.3 Parker cannot prove from the evidence that Monument Sales had a duty which it breached.

Although Parker’s witness testified that the use of spacers is standard for the industry, and that it is foreseeable that monuments will be moved after installation, these statements are directly contradicted by the brochure he endorsed as being correct. To the extent that the witness’ averments are contradicted by the brochure he endorsed, the contradictions are to be construed against him.4 Thus, we conclude that the industry usually uses the setting compound without spacers, that an installer should not expect the monuments to be moved after installation, and that the use of spacers is not the only or necessarily the best method of installation. There is, therefore, no evidence that Monument. Sales breached a duty in its method of installation.

2. Proximate cause. Even assuming that a genuine issue of fact exists with regard to whether Monument Sales was negligent in the manner in which it installed the monument, there is no evidence of [187]*187proximate cause. The requirement of proximate cause constitutes a limit on legal liability; it is a policy decision that, for a variety of reasons, the defendants’ conduct and the plaintiff’s injury are too remote for the law to allow recovery.5 For this reason, before any negligence can be actionable, that negligence must be the proximate cause of the injuries sued upon.6

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Cite This Page — Counsel Stack

Bluebook (online)
564 S.E.2d 795, 255 Ga. App. 184, 2002 Fulton County D. Rep. 1353, 2002 Ga. App. LEXIS 560, Counsel Stack Legal Research, https://law.counselstack.com/opinion/parker-v-hovers-gactapp-2002.