Taylor v. Schander

428 S.E.2d 806, 207 Ga. App. 627, 93 Fulton County D. Rep. 1047, 1993 Ga. App. LEXIS 276

• Court: Court of Appeals of Georgia
• Decided: March 5, 1993
• Docket: A92A1974
• Status: Published

Opinions

Pope, Chief Judge.

Plaintiff Candace Ann Taylor and defendant Cynthia M. Schander were previously involved in a romantic relationship. This lawsuit arises out of an injury plaintiff sustained on their first date in February 1989. After spending several hours at a bar, the couple returned to defendant’s house. Plaintiff was sitting on a kitchen bar stool facing defendant, who was also sitting on a stool. According to plaintiff’s account of the incident, the couple commenced kissing. Defendant got up and sat in plaintiff’s lap and the couple resumed kissing. Because of a certain movement defendant made with her arms, the stool toppled and both women fell to the floor. Plaintiff alleges she suffered a broken ankle and was disabled from work as a result of the fall. After the couple broke off their relationship, plaintiff filed a complaint against defendant in September 1990, alleging defendant’s negligence was the proximate cause of her injuries. The trial court granted defendant’s motion for summary judgment and plaintiff appeals.

1. Plaintiff does not assert the fall resulted from the defective condition of the stool or the floor. Plaintiff asserts the fall was caused by defendant’s alleged negligence in sitting on her lap and causing the stool to topple over. Plaintiff admits, however, that she consented to defendant’s sitting in her lap. In our opinion, the risk of falling in this situation should have been obvious. Thus, the undisputed facts of this case establish plaintiff assumed the risk involved in defendant’s act. “One who knowingly and voluntarily takes a risk of physical injury the danger of which is so obvious that the act of taking such risk, in and of itself, amounts to a failure to exercise ordinary care and diligence for his own safety, can not hold another liable for damages resulting from a hurt thus occasioned, although the same may be in part attributable to the latter’s negligence.” City of Columbus v. Griggs, 113 Ga. 597 (1) (38 SE 953) (1901). Even though, as plaintiff argues, questions of negligence and proximate cause are usually issues for jury determination, this is one of those rare cases in which the undisputed facts clearly establish that plaintiff is barred from recovery by her own assumption of the risk.

2. The order granting defendant’s motion for summary judgment does not recite that it is based on a review of the record and the record reflects the depositions of the parties were first opened by the clerk of the trial court for the purpose of transmitting the record to this court after the notice of appeal was filed. Plaintiff argues the record thus shows the depositions were not considered by the trial court in ruling on defendant’s motion and that the failure to consider the depositions constituted a denial of her right to due process. Even if the record clearly shows that a deposition was not considered below, it may be considered on appellate review of a ruling on a motion for summary judgment to determine whether the facts of the case create an issue of material fact for determination below. See Miller Grading Contractors v. Ga. Fed. &c. Assn., 247 Ga. 730 (3) (279 SE2d 442) (1981). We take this opportunity to overrule Maddox v. Brown, 188 Ga. App. 728 (374 SE2d 222) (1988), and all cases which follow its holding, because it is inconsistent with the holding in Miller Grading in that it reversed the grant of summary judgment and remanded the case to the trial court for consideration of all evidence without first making a determination of whether such a remand was necessary on the ground of harmless error. Having reviewed the depositions of the parties, we conclude any error in the trial court’s failure to consider this evidence was harmless because no issue of material fact is created by the deposition testimony. See Malloy v. Cauley, 169 Ga. App. 623, 625 (2) (314 SE2d 464) (1984).

Judgment affirmed. McMurray, P. J., Birdsong, P. J., Carley, P. J., and Andrews, J., concur. Beasley, Cooper, Johnson and Blackburn, JJ., concur specially.