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Lack of capacity: Everyone is competent to be a witness (Little v. Jim-Lar)

In Little v. Jim-Lar Corporation, 835 SE 2d 794 (Ga. App. 2019), summary judgment was affirmed in a personal injury case where the plaintiff was alleged to be incompetent. Myra Little and her guardian brought suit against a McDonalds franchisee, alleging she has a severe allergic reaction, suffering physical and psychological harm, after she ordered an apple pie, but was served a peach pie. The franchisee moved for summary judgment, which was granted after the trial court found Little’s verified interrogatory responses were inadmissible due to her incompetence. That ruling was affirmed on appeal.

The plaintiffs argue that the trial court erred in ruling that Little’s interrogatory responses were not admissible. The plaintiffs argue that, as a matter of law, Little was not incompetent to verify one of the sets of interrogatory responses in the record because she had not yet been appointed a guardian in the separate guardianship proceeding. (The record also contains a set of interrogatory responses that Little verified after the ruling in the guardianship proceeding.) But Little’s qualification for the appointment of a guardian (and the timing of a ruling on that appointment) does not determine the trial court’s authority to disregard her testimony. Under OCGA § 29-4-1 (a), a “court may appoint a guardian for an adult only if the court finds the adult lacks sufficient capacity to make or communicate significant responsible decisions concerning his or her health or safety.” This is not one of the statutory exceptions to OCGA § 24-6-601, which, as stated above, provides that “every person is competent to be a witness.” (Emphasis supplied.) In fact, “Rule 601 allows one not mentally competent to testify, and it assumes that jurors are capable of evaluating a witness’s testimony in light of the fact that he is not mentally competent, [although] a court has the power to rule that a witness is incapable of testifying.” Gates, 10 F.3d at 766 (I) (construing Fed. R. Evid. 601, which is materially identical to OCGA § 24-6-601). Simply put, one may or may not be capable of testifying regardless of one’s need for the appointment of a guardian. So the trial court was authorized to disregard Little’s verified interrogatory responses even though the verification preceded the ruling in the guardianship proceeding.

Judgment affirmed.

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