Opinion
A91A0155.
DECIDED JULY 15, 1991. RECONSIDERATION DENIED JULY 30, 1991.
Action for damages. Fulton Superior Court. Before Judge Sears-Collins.
Rowe McGarity, J. Michael McGarity, for appellant.
Neely Player, Leigh M. Wilco, Julie A. Taylor, Julianna Kauderer, Powell, Goldstein, Frazer Murphy, William V. Custer IV, David G. Ross, for appellees.
Seeking to recover for injuries sustained in a fall down a stairway, appellant-plaintiff brought suit against appellee-defendants. Appellees answered and, after discovery, moved for summary judgment. The trial court granted summary judgment in appellees' favor after eliminating from its consideration the most favorable portions of appellant's testimony regarding the cause of her fall. See Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27 ( 343 S.E.2d 680) (1986). Appellant appeals from that order.
1. The first issue for resolution is whether the trial court was correct in eliminating the favorable portions of appellant's testimony pursuant to Prophecy Corp. v. Charles Rossignol, Inc., supra.
"In each case, . . . it must be decided if the testimony of a party-witness is contradictory. On summary judgment this is a question for the judge to decide. It is contradictory if one part of the testimony asserts or expresses the opposite of another part of the testimony." Prophecy Corp. v. Charles Rossignol, Inc., supra at 30 (2). A review of the record reveals the existence of no such contradiction in appellant's testimony as to the cause of her fall. Appellant has consistently maintained that the carpeting covered a raised board at the head of the stairway and that this carpet-covered unevenness was the obstacle over which she tripped. Compare Boyd v. Garden Center, 197 Ga. App. 198, 199 (1) ( 397 S.E.2d 626) (1990). It is true that, in several instances in her testimony, appellant acknowledged that she does not have personal knowledge as to what it was that had actually caused her to trip, since she had not been looking down at the time she tripped and, after falling down, she had been unable to return to the head of the stairway. However, the mere fact that appellant had no personal knowledge of what had actually caused her to fall would certainly not be inconsistent with her contentions as to what had actually caused her to fall. In proving her contentions regarding the cause of her fall, appellant would not be limited to her own personal knowledge testimony. Since there is no inconsistency between appellant's acknowledgment of a lack of personal knowledge on the one hand and her contentions as to the cause of her fall on the other, the trial court erred in eliminating any portion of appellant's testimony from consideration.
2. The existence of a carpet-covered obstacle was otherwise shown by direct evidence and the circumstantial evidence would authorize a finding that it was the cause of appellant's fall. Thus, construing the evidence most favorably for appellant and most strongly against appellees, a genuine issue of material fact remains. Compare Zellers v. Theater of the Stars, 171 Ga. App. 406 ( 319 S.E.2d 553) (1984). It follows, therefore, that the trial court erred in granting summary judgment in favor of appellees.
Judgment reversed. Banke, P. J., and Beasley, J., concur.