375 S.E.2d 282 | Ga. Ct. App. | 1988
Appellants were tenants in an apartment complex owned by appellee. When appellee filed a dispossessory action against them, they counterclaimed for injuries suffered by Mr. Thomas in a fall on the stairs leading to their apartment. In this appeal from the grant of summary judgment to appellee on both claims, appellants contend that appellee did not prove that he lacked actual or constructive knowledge of the defect in the stairs and that they are entitled to set-off against the rent they owe the amount of their damages from the fall.
1. A party seeking summary judgment has the burden of negating at least one of the essential elements of the opposing party’s case.
2. Appellants’ attempt to use a tort claim as a set-off to a contract claim is foreclosed by Gillespie v. Georgian Fin. &c. Corp., 113 Ga. App. 134 (147 SE2d 465) (1966): “ ‘Generally a cause of action ex delicto cannot be set off against an action ex contractu, and vice versa. [Cits.] The only exception to this rule is where equitable principles such as insolvency or nonresidence of the plaintiff are involved. [Cits.]’ ” This case not coming within the exception stated, the grant of summary judgment to appellee on his original claim was correct.
Judgment affirmed in part and reversed in part.