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Summary Judgment, Sample Language on the Standard in a Georgia Case

The following language was used in a contract dispute where a Motion for Summary Judgment was filed in Superior Court:

“The standard on motion for summary judgment is whether any genuine issue of material fact exists and, if not, whether the moving party is entitled to judgment as a matter of law. See O.C.G.A. § 9-11-56(c); Lau’s Corporation, Inc. v. Haskins, 261 Ga. 491 (1991); BBB Service Company, Inc. v. Glass, 228 Ga. App. 423 (1997). See also Summer-Minter & Associates, Inc. v. Giordano, 231 Ga. 601 (1973); and Burnette Ford, Inc. v. Hayes, 227 Ga. 551 (1971). Defendants contend the issues raised in this Motion are legal issues, that there are no genuine issues of fact to be decided and that they are entitled to summary judgment.”

The following language was used in response to a Motion for Summary Judgment filed by a malpractice defendant. The goal was to show why the motion should be denied.

“The standard used to evaluate the grant of a motion to dismiss when the sufficiency of the complaint is questioned is whether the allegations of the complaint, when construed in the light most favorable to the plaintiff with all doubts resolved in the plaintiff’s favor, disclose with certainty that the plaintiff would not be entitled to relief under any state of provable facts. Hartsfield v. Union City Chrysler-Plymouth, 218 Ga. App. 873, 874, 463 S.E.2d 713 (1995). When matters outside of the pleadings are presented to the trial court, the motion to dismiss is treated as one for summary judgment. See OCGA § 9-11-12(b).” Cooper v. Unified Government of Athens Clarke County, 275 Ga. 433 (2002). See also Hewett v. Kalish, 264 Ga. 183 (1994). Plaintiffs concede that the interpretation of O.C.G.A. § 31-8-108 is a matter for the Court. However, the interpretation suggested herein is consistent with the express language of the statute, as well as its spirit as expressed in O.C.G.A. § 31-8-101. Thus, the Plaintiffs contend the motion to dismiss should be denied.

On a motion for summary judgment, the appropriate standard is whether any genuine issue of material fact exists and, if not, whether the moving party is entitled to judgment as a matter of law. See O.C.G.A. § 9-11-56(c); Lau’s Corporation, Inc. v. Haskins, 261 Ga. 491 (1991). Recently, in Beard v. Audio Visual Services, Inc., 260 Ga. App. 476, 2003 WL 1344856 (2003), the Court of Appeals relied on Lau’s Corporation, reversing a summary judgment. There, the Court stated:

This case is governed by basic principles of negligence. “[O]rdinary diligence is that degree of care which is exercised by ordinarily prudent persons under the same or similar circumstances…. The absence of such diligence is termed ordinary negligence.” What constitutes ordinary diligence, under any particular circumstances, is a question for the jury. In Lau’s Corp. v. Haskins, the Supreme Court of Georgia wrote: Since it is impossible to prescribe definite rules in advance for every combination of circumstances which may arise, the details of the standard [of care] must be filled in [in] each particular case. But, to be negligent, the conduct must be unreasonable in light of the recognizable risk of harm. Whether a party has failed to exercise ordinary care can be decided on summary judgment only when “undisputable, plain and palpable facts exist on which reasonable minds could not differ as to the conclusion to be reached.”

The Plaintiff contends the same principles apply here and that a jury issue remains for determination.

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