Vis v. Harris, 329 Ga. App. 129

Background

Faythe Vis slipped and fell at a Sheraton in Atlanta and sued the hotel employee, the owner, and the hotel manager Amerimar Courtland Management (Amerimar).
Vis served Amerimar with requests for admissions when served; Amerimar answered the complaint but never responded to the requests for admissions.
Vis relied on those deemed admissions in briefs and in the consolidated pretrial order; at trial her counsel read the admissions aloud to the jury after opening statements; defendants made no contemporaneous objection.
After close of evidence and before closing arguments, the trial court sua sponte announced it would not allow the case to be submitted to the jury on the basis that Amerimar had “admitted the case” and effectively disallowed argument about the admissions.
Amerimar never moved to withdraw or amend the deemed admissions under OCGA § 9-11-36(b); plaintiff argued the admissions were conclusively established and had been properly placed into evidence.
The Court of Appeals held the trial court erred in withdrawing the admissions and restricting plaintiff’s argument, and reversed the judgment.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether counsel could read Amerimar’s deemed admissions into the record at trial without a prior court ruling	Reading them aloud placed them into evidence; no court permission required where admissions had been served and previously filed	Reading them aloud was improper method; no ruling on admissibility was sought before reading	Reading the admissions aloud after no objection placed them into evidence; plaintiff was not required to obtain a separate judicial ruling beforehand
Whether plaintiff needed to re-file the admissions at trial to use them	Not required because admissions were already filed as an exhibit in opposition to summary judgment, satisfying OCGA § 9-11-29.1(a)(5)	Claimed procedural defect that admissions were not filed into the trial record	Court agreed plaintiff had previously filed the admissions and need not re-file at trial
Whether the trial court could sua sponte withdraw or negate the effect of deemed admissions after close of evidence without a motion from defendants	Admissions were conclusive under OCGA § 9-11-36(b); withdrawal requires a motion and court findings — none were made	Argued the court did not explicitly instruct jury to disregard and thus no harm	Court held withdrawal/amendment requires motion and findings; absent such motion, court abused discretion by preventing plaintiff from arguing their conclusive effect
Whether excluding argument about the admissions was harmless error because plaintiff did not argue them in closing	Plaintiff had been prevented from doing so and had relied on admissions earlier; she could not risk contempt by arguing after the court’s ruling	Defendants said no reversible harm because record unclear and plaintiff did not press admissions in closing	Court found the ruling restricted plaintiff’s ability to argue facts in evidence and was not harmless; reversal required

Key Cases Cited

Bartosz v. Chapparal Enterprises, 271 Ga. App. 246 (admissions must be introduced into evidence before the trier of fact may consider them)
Harper v. Samples, 164 Ga. App. 511 (same — appeals court cannot consider admissions not introduced at trial)
Nat. Bank of Ga. v. Hill, 148 Ga. App. 688 (admissions constitute matters of proof and must be introduced in evidence)
Elrod v. Sunflower Meadows Development, 322 Ga. App. 666 (withdrawing admissions requires showing that presentation of the merits would be subserved and no prejudice)
Velasco v. Chambless, 295 Ga. App. 376 (trial court’s discretion to permit withdrawal reviewed for abuse)
Post-Tensioned Constr. v. VSL Corp., 143 Ga. App. 148 (failure to move to withdraw admissions forecloses remedial action; unanswered requests are deemed admitted)
Brooks v. Roley & Roley Engineers, 144 Ga. App. 101 (reversal where trial court refused to admit admissions as probative evidence)