Byron and Joy Gunnin brought this action for negligent termite inspection against Swat, Inc., and Tommy Dunn, its president. Swat performed a termite inspection on March 31, 1988, in connection with the Gunnins’ purchase of a house. At closing on April 7, 1988, Swat provided the Gunnins a standard termite letter certifying that Swat had inspected the house and found no visible signs of past or present infestation. On April 18, 1988, less than three weeks after the inspection, the Gunnins discovered bits of wallpaper falling from the wall in the bathroom and termites falling from the ceiling. Upon closer inspection, they found that the entire rear of the house was infested with termites with resulting structural damages. They notified Swat and the company came out and treated the infested areas. In their complaint, the Gunnins allege the cost of structural repair to be $6,280. The trial court granted summary judgment to defendants Swat and Dunn. Held:
We affirm. “On a motion for summary judgment the burden of establishing the non-existence of any genuine issue of fact is upon the moving party and all doubts are to be resolved against the movant. The movant has that burden even as to issues upon which the opposing party would have the trial burden, and the moving party’s papers are carefully scrutinized, while the opposing party’s papers, if any, are treated with considerable indulgence.” (Citations and punctuation omitted.)
Butler v. Terminix Intl.,
In support of their motion, Swat and Dunn relied on the affidavit
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of Dunn, in which he averred that he made the inspection “on or about the 31st day of March, 1988” and that his inspection “revealed no visible evidence of infestation of the property with wood destroying organisms.” In opposition, the Gunnins produced the affidavits of Byron Gunnin and Wesley Johnson. Johnson is a qualified and certified pest control operator with 14 years experience. In his affidavit, he stated that he reviewed photographs, videotape and inspection reports of the house made in April 1988. From his examination of this material, Johnson gave his opinion that a proper inspection of the property on March 31, 1988 “would have resulted in the discovery of the infestation existing on that date. ...” He also opined that signs of the infestation “were plainly visible at the time the alleged inspection was made.” “ ‘Negligence is not to be presumed, but is a matter for affirmative proof.’ [Cit.]”
Worth v. Orkin Exterminating Co.,
The court in
Bush v. Legum,
Johnson’s opinion as expressed in his affidavit is not based on personal knowledge. He does not state that he visited the premises. Instead, it is derived from photographs, videotape and reports not appearing in the record. Thus, it is not probative to contradict the affidavit of Dunn. Nor does. Byron Gunnin’s affidavit create a genuine issue of fact. Although Gunnin avers that visible evidence of termite infestation was easily observed on March 31, 1988, this testimony is directly contradicted by his deposition testimony. In that testimony,
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he said he looked at the house on February 22, at which time he made an offer to buy it and he did not enter the house again until April 7 when he started to move in. He did not notice the termite damage until April 18. “ ‘[0]n summary judgment the self-contradictory testimony of a party-witness, if a reasonable explanation is not offered for the contradiction, must be construed against the party-witness. . . .’ [Cit.]”
Evans v. Richardson,
Judgment affirmed.