Blake v. KES, Inc.
329 Ga. App. 742
| Ga. Ct. App. | 2014Background
- Paul Blake had developmental disabilities and required constant supervision and medication; he lived in a personal care home and attended KES day services.
- On Sept. 22, 2009, Paul arrived at the KES facility, deteriorated, rested, and subsequently wandered away with staff failing to immediately pursue.
- Paul fell beside a van around 12:19 p.m.; staff arrived after ~40 seconds, CPR delayed; emergency responders later treated him but he died.
- Plaintiffs Carl and Yvonne Blake sue KES entities for negligence, wrongful death, negligence per se, intentional infliction of emotional distress, breach of contract, and negligent supervision.
- Both sides moved for summary judgment; the trial court granted KES’s motion and denied the Blakes’ motion, partly on evidentiary grounds.
- This appeal challenges the court’s handling of deposition exhibits, authentication issues, and supplemental briefing surrounding summary judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| whether Kimani deposition can be considered | Blakes: deposition excerpts should be considered despite lack of signed original. | KES: unsigned copy cannot be used absent waiver or proper authentication. | Deposition excerpts properly considered; remanded to include Kimani deposition. |
| whether Exhibits 1-A to 1-M authentication | Exhibits are business records authenticated by production. | Exhibits lacked authentication. | Exhibits properly admissible; exclusion error reversed. |
| whether trial court erred in excluding Blakes' depositions and exhibits | Evidence timely filed; error to exclude. | Evidence not timely or properly authenticated. | Even if excluded, KES evidence still supports denial of Blakes’ motion. |
| supplemental briefing | Court should consider supplemental briefing authorized at hearing. | Supplemental briefing disregarded due to lack of consent/timing. | Court could consider supplemental briefing; disregard was error or harmless. |
Key Cases Cited
- Steed v. Fed. Nat. Mtg. Corp., 301 Ga. App. 801 (Ga. App. 2009) (use of deposition transcripts with OCGA 9-11-30(e))
- Porter Coatings v. Stein Steel & Supply Co., 247 Ga. 631 (Ga. 1981) (waiver/acquiescence in late-filed supporting material)
- Suttle v. Northside Realty Associates, Inc., 171 Ga. App. 928 (Ga. App. 1984) (waiver/estoppel for late-filed affidavits)
- Shannon v. Office Max North America, Inc., 291 Ga. App. 834 (Ga. App. 2008) (deposition completeness and admissibility considerations)
- Jacobsen v. Muller, 181 Ga. App. 382 (Ga. App. 1986) (OCGA 9-11-29.1/29.1(a)(5) deposition procedures)
- Ga. Messenger Svc. v. Bradley, 302 Ga. App. 247 (Ga. App. 2010) (deposition materials filed after ruling)
- Home Builders Assn. of Savannah v. Chatham County, 276 Ga. 243 (Ga. 2003) (summary judgment standard requires no genuine issue of material fact)
- USF Corp. v. Securitas Security Svcs. USA, 305 Ga. App. 404 (Ga. App. 2010) (punctuation/filing considerations in appellate review)
- Village Auto Ins. Co. v. Rush, 286 Ga. App. 688 (Ga. App. 2007) (deposition/testimony filing and evidentiary treatment)
- Wilson v. Obstetrics & Gynecology of Atlanta, P.C., 304 Ga. App. 300 (Ga. App. 2010) (remand to consider deposition testimony not filed timely)