Epps Air Service, Inc. v. DeKalb County, 56154

• Decision Date: 12 September 1978
• Docket Number: No. 56154,56154
• Citation: 147 Ga.App. 195,248 S.E.2d 300
• Parties: EPPS AIR SERVICE, INC. v. DeKALB COUNTY et al.
• Court: Georgia Court of Appeals

Page 300

248 S.E.2d 300

147 Ga.App. 195

EPPS AIR SERVICE, INC. v. DeKALB COUNTY et al.

No. 56154.

Court of Appeals of Georgia.

Argued June 26, 1978.

Decided Sept. 12, 1978.

Smith, Cohen, Ringel, Kohler & Martin, Harold A. Horne, Jr., Andrew J. Hinton, Jr., Atlanta, for appellant.

Swift, Currie, McGhee & Hiers, Glover McGhee, Michael H. Schroder, Atlanta, for appellees.

SHULMAN, Judge.

This case involves a collision at the DeKalb-Peachtree Airport (a facility within the governing authority of DeKalb County) between an aircraft operated by an employee of appellant, Epps Air Service, Inc., and a truck driven by appellee Davis, a maintenance man at the airport. Suit for damages was filed by appellant against Davis and A. C. Guhl, as Chairman of the Board of Commissioners of DeKalb County. Appellees filed an answer, including a counterclaim by DeKalb County. Summary judgment was granted in favor of the appellees, dismissing plaintiff's complaint and further granting partial summary judgment in favor of the county as to its counterclaim on the issue of liability. This appeal seeks review of those judgments.

1. "Unless no other conclusion is permissible, questions of negligence are matters for jury resolution and are not ordinarily susceptible to summary adjudication. (Cit.)" Russell v. Goza, 143 Ga.App. 455, 456, 238 S.E.2d 583, 584.

Presiding Judge Hall, in Wakefield v. A. R. Winter Co., 121 Ga.App. 259, 260, 174 S.E.2d 178, 179 stated: " 'Here we start with the general proposition that issues of negligence, including such related issues as wanton or contributory negligence, are ordinarily not susceptible of summary adjudication either for or against the claimant, but should be resolved by trial in the ordinary manner.' 6 Moore's Federal Practice 2d Ed. 2583, § 56.17(42). 'Summary judgment will not usually be as feasible in negligence cases, where the standard of the reasonable man must be applied to conflicting testimony as it is in other kinds of litigation . . . Even where there is no dispute as to the facts, it is, however, usually for the jury to say whether the conduct in question met the standard of the reasonable man.' 3 Barron & Holtzoff-Wright, Federal Practice and Procedure, 106, 109, § 1232.1."

"To entitle the defendant to a summary judgment the undisputed facts as disclosed by the pleadings and evidence must negate at least one essential element entitling plaintiff to recovery and Under every theory fairly drawn from the pleadings and evidence (cits.) and if necessary, prove the negative or nonexistence of an essential element affirmatively asserted by the plaintiff. (Cits.)" Henderson v. Atlanta Transit System, 133 Ga.App. 354, 356, 210 S.E.2d 845, 846.

"Where a party to a case, upon whom the burden of proof on the trial of the case does not lie, makes a motion for summary judgment all the evidence adduced on the motion, including the testimony of the party opposing the motion is construed most strongly against the movant. (Cit.)" Reese v. Reese, 142 Ga.App. 243, 245, 236 S.E.2d...