Morgan v

Richard Bowers & Co., 280 Ga. App. 533, 634 S.E.2d 415 (2006). Trial court did not err in denying an employer’s summary judgment motion, determining that the employee had performed the services necessary to be entitled to the allegedly agreed-upon per diem compensation; hence, the employee’s status as an at-will employee was not determinative, and did not bar the cause of action. Walker Elec. Co. v. Byrd, 281 Ga. App. 190, 635 S.E.2d 819 (2006). Trial court did not err in granting an employer’s motion for summary judgment: (1) denying the employee’s request for mandamus relief, given that the employee had no clear legal right to a job reinstatement, and based on a federal conviction, that claim was moot; and (2) denying the employer’s quantum meruit claim, as the existence of an employment contract, under which the employee sought the same compensation as a quantum meruit claim, precluded any quantum meruit recovery. Williams v. City of Atlanta, 281 Ga. 478, 640 S.E.2d 35 (2007). In a renewal action resulting from the termination of a commission agreement in favor of a payee, because the payee’s quantum meruit and reformation claims were barred by res judicata, and the fact that the state court potentially lacked jurisdiction over the reformation claim was immaterial, the trial court erred in denying the payor’s motion for summary judgment. ChoicePoint Servs. v. Hiers, 284 Ga. App. 640, 644 S.E.2d 456 (2007), cert. denied, 2007 Ga. LEXIS 499 (Ga. 2007). In an action arising from an alleged employment contract between the parties, the trial court erred in granting summary judgment to an employer as genuine issues of material fact remained regarding whether a contract indeed existed between the parties, which the employee actually signed and acknowledged. Shilling v. Cornerstone Med. Assocs., LLC, 290 Ga. App. 169, 659 S.E.2d 416 (2008). 789 Applicability to Certain Actions, Proceedings, Issues, and Defenses (Cont’d) In a breach of contract action centering around a contract of employment with a county employer and the county’s board of tax assessors, because the employment contract was never approved by the county commission, and the county’s payment of a salary to the employee was not considered a ratification of the contract in the contract’s entirety, the employee possessed only an at-will employment. Thus, summary judgment was properly entered against the employee. Powell v. Wheeler County, 290 Ga. App. 508, 659 S.E.2d 893 (2008). Non-solicitation covenants in employment contracts. — In an action arising from an alleged breach of a non-solicitation covenant within a consultant agreement, because the employee subject to the covenant understood the covenant to apply only to those clients the employee’s employer acquired when it bought the employee’s former company, or with whom the employee had material contact during the course of that employment, the trial court misconstrued the agreement by limiting the agreement’s scope, and the employer was erroneously granted summary judgment based on the employee’s alleged breach. Atl. Ins. Brokers, LLC v. Slade Hancock Agency, Inc., 287 Ga. App. 677, 652 S.E.2d 577 (2007). Action under Fair Dismissal Act. — In an action in which an employee, who was terminated for failing to obtain an educator’s certificate, waived a rehearing, and was paid a full salary through the date of a hearing, the employee’s due process rights under the Fair Dismissal Act, O.C.G.A. § 20-2-940, were not violated; consequently, the school board was properly granted summary judgment. Oliver v. Lee County Sch. Dist., 270 Ga. App. 61, 606 S.E.2d 88 (2004). Solemn admission in judicio. — Trial court properly granted a seller’s motion for partial summary judgment and denied the escrow agent’s motion to dismiss, in the seller’s suit to recover the earnest money deposited by the buyers because the buyers admitted in the buy- 9-11-56 ers’ answer that the buyers knew the identity and location of the property, and although the buyers later amended the buyers’ answer to raise a Georgia Statute of Frauds, O.C.G.A. § 13-5-30, defense, the buyers never withdrew the buyers’ admission, and the buyers and the escrow agent were bound by the admission; the admission constituted a solemn admission in judicio under former O.C.G.A. § 24-4-24(b)(7) (see now O.C.G.A. § 24-14-26), and created a conclusive presumption of law under former subsection (a) of that section. Nhan v. Wellington Square, LLC, 263 Ga. App. 717, 589 S.E.2d 285 (2003). Res judicata. — Appeals court agreed with the trial court that the doctrine of res judicata barred the negligence and breach of contract claims asserted by two property owners against a contractor as: (1) the claims were essentially identical to the allegations in a counterclaim filed in a prior Cherokee County action; (2) the parties in the two cases were identical for purposes of res judicata; and (3) the Cherokee County suit resulted in an adjudication on the merits. Perrett v. Sumner, 286 Ga. App. 379, 649 S.E.2d 545 (2007). Stock agreement not illegal or immoral. — Although the parties intended to circumvent Georgia Department of Revenue regulations by issuing corporate stock to an employee’s spouse, the stock agreement was not illegal or immoral, a trial court erred in voiding the interest of the employee’s spouse, and summary judgment in favor of the corporation in the spouse’s action for an accounting, dissolution, and other relief was reversed; the corporation’s failure to add a different shareholder’s name to the corporate stock register did not demand a finding, for summary judgment purposes, that the person was not a shareholder, and the denial of the corporation’s summary judgment motion as to that shareholder was affirmed. Edwards v. Grapefields, Inc., 267 Ga. App. 399, 599 S.E.2d 489 (2004). Oral contract for transfer of real property. — Summary judgment was properly entered against the deceased’s child on a claim against the deceased’s estate for specific performance in regard to an alleged oral contract for the convey- 790 ance of property since no evidence was presented regarding the value of the land or the home or the value of the services performed in exchange for the alleged promise. Miller v. Miller, 262 Ga. App. 546, 586 S.E.2d 36 (2003), overruled on other grounds, Mateen v. Dicus, 281 Ga. 455, 637 S.E. 2d 377. Landowners’ trespass and negligence suit. — Trial court properly denied a neighbor’s motion for summary judgment and the appellate court reversed the denial of the cross-motion for summary judgment filed by the adjoining landowners in a trespass and negligence suit because the neighbor purchased property without first obtaining a survey and the adjoining landowners’ home was already encroaching upon the neighbor’s property by two feet at the time of the purchase; the adjoining landowners were not liable for their predecessor’s conduct in building the house and a fence across the property line of the neighbor’s predecessor in title, in the absence of evidence that their predecessor was acting as their agent, and were, therefore, entitled to summary judgment. Navajo Constr., Inc. v. Brigham, 271 Ga. App. 128, 608 S.E.2d 732 (2004). Landowner’s trespass and nuisance suit. — In two cases involving a dispute for nuisance and trespass arising out of excessive water runoff which flowed onto a landowner’s land, the trial court’s grant of summary judgment to a construction contractor as to the issue of the contractor’s liability was reversed, while the denial of summary judgment to a developer as to the issue of the contractor’s liability was affirmed, as: (1) the combination of the lay and expert testimony as to the presence of the excess runoff and its cause presented questions of fact for a jury to decide; (2) merely because the county approved the development activities did not mean that either the contractor or the developer or both could not be held liable for nuisance; and (3) the landowner’s action against the alleged creators of the water-runoff nuisance was authorized, regardless of their having sold the property. Green v. Eastland Homes, Inc., 284 Ga. App. 643, 644 S.E.2d 479 (2007), cert. denied, 2007 Ga. LEXIS 629 (Ga. 2007). Premises liability to invitee. — In a premise liability action, because questions 9-11-56 of fact remained as to whether a student was a university’s invitee at the time the student was shot on what was alleged to be the university’s property at the time of the assault, and thus, whether the university owed the student a duty of ordinary care, and no evidence was presented that the student lost an ‘‘invitee’’ status, summary judgment in the university’s favor was reversed. Clark Atlanta Univ., Inc. v. Williams, 288 Ga. App. 180, 654 S.E.2d 402 (2007), cert. denied, 2008 Ga. LEXIS 227 (Ga. 2008). In a premises liability action filed by a guest of a property owner, because the guest failed to show that the owner had any actual or constructive knowledge of the alleged hazard that allegedly caused the guest’s injuries, specifically, a hole in an otherwise flat, grassy area of the owner’s yard, the court properly granted the owner summary judgment. Thomas v. Deason, 289 Ga. App. 753, 658 S.E.2d 165 (2008). Restrictive covenants. — On appeal from an order in a declaratory judgment action, the trial court did not err in finding, upon cross-motions for summary judgment, that restrictive covenants which had been made applicable to the subdivision over 20 years earlier remained in effect and prohibited a buyer from re-subdividing certain tracts into residential lots with less than five acres, but did err in ruling that interpretation of the covenants was a legal matter for the court, rather than a factual matter for the jury. Britt v. Albright, 282 Ga. App. 206, 638 S.E.2d 372 (2006), cert. denied, 2007 Ga. LEXIS 199 (Ga. 2007). Credibility. — If credibility is crucial, summary judgment becomes improper and a trial indispensable. Winkles v. Brown, 227 Ga. 33, 178 S.E.2d 865 (1970). If a question of credibility arises as to a material issue, summary judgment should not be granted. Georgia Cas. & Sur. Co. v. Almon, 122 Ga. App. 42, 176 S.E.2d 205 (1970); Ash v. Spear, 137 Ga. App. 12, 223 S.E.2d 26 (1975). Questions of credibility cannot be resolved on summary judgment. Jones v. Howard, 153 Ga. App. 137, 264 S.E.2d 587 (1980). False light and invasion of privacy. — Trial court properly granted summary 791 Applicability to Certain Actions, Proceedings, Issues, and Defenses (Cont’d) judgment to an auto dealer, mortgage broker, and lender on an accused person’s claim for invasion of privacy by placing a person in a false light as the accused person did not show that the false information — that the accused person allegedly participated in a fraudulent financing scheme — was distributed to the public at large. Additionally, the trial court correctly granted summary judgment on the issue of the accused person’s claim that there was an invasion of privacy through appropriation as the accused person did not show any evidence that they took the accused person’s name and likeness for their own advantage. Blakey v. Victory Equip. Sales, inc., 259 Ga. App. 34, 576 S.E.2d 38 (2002). Defamation actions. — Summary judgment procedures are particularly appropriate in defamation actions when U.S. Const., amend. i is applicable. Williams v. Trust Co., 140 Ga. App. 49, 230 S.E.2d 45 (1976). Because of the importance of free speech, summary judgment is the rule, not the exception, in defamation cases. Rosanova v. Playboy Enters., Inc., 411 F. Supp. 440 (S.D. Ga. 1976), aff ’d, 580 F.2d 859 (5th Cir. 1978). Debtor’s defamation claim, under O.C.G.A. § 51-5-1(a), against a creditor for reporting its repossession of collateral from the debtor to credit reporting agencies was properly summarily dismissed, under O.C.G.A. § 9-11-56(c), because such a claim was preempted by the Federal Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq., absent the creditor’s malice or willful intent to injure the debtor, which were not shown. Corbin v. Regions Bank, 258 Ga. App. 490, 574 S.E.2d 616 (2002). Summary judgment for a city manager was appropriate in a community activist’s defamation action because the activist was a limited-purpose public figure by reason of extensive participation in city affairs, and the activist failed to show actual malice by the manager. Sparks v. Peaster, 260 Ga. App. 232, 581 S.E.2d 579 (2003). 9-11-56 Summary judgment was improperly granted to an employer pursuant to O.C.G.A. § 9-11-56(c) in a terminated employee’s suit alleging breach of contract, defamation, and tortious interference with contract because there were disputed questions of material fact and matters of credibility that a jury had to resolve regarding whether the corporation’s president discharged the employee in good faith or did so for personal reasons unrelated to the employee’s job performance. Salhab v. Tift Heart Ctr., P.C., 260 Ga. App. 799, 581 S.E.2d 363 (2003). Statement that a sheriff provided to the Georgia Department of Labor (DOL) after the sheriff decided not to rehire an employee and the employee filed a claim for workers’ compensation benefits was privileged, and the trial court ruled correctly that the sheriff was entitled to summary judgment on the employee’s claim alleging slander, even though the sheriff ’s statement was published by a newspaper one week later and the newspaper published a follow-on article that stated that the sheriff stood by the statement the sheriff made to the DOL. Cooper-Bridges v. Ingle, 268 Ga. App. 73, 601 S.E.2d 445 (2004). Trial court erroneously granted summary judgment against an election candidate, and in favor of the incumbent, on the former’s defamation claims stemming from a printed newspaper advertisement as issues of fact remained as to the actual malice exhibited by the incumbent in publishing the advertisement, and the flagrant accusations stated therein went beyond the criticism, hostility, and unfairness a candidate might expect to encounter while running for political office. Howard v. Pope, 282 Ga. App. 137, 637 S.E.2d 854 (2006). Libel actions. — In an action by a contractor against a newspaper and the newspaper’s editor, because: (1) the average reader would have interpreted a printed headline’s use of the term ‘‘rape’’ as an attempt to convey the severity of the damage to the land that the contractor inflicted rather than to characterize the contractor’s conduct that resulted in the damage as criminal; and (2) the article referred to by the headline did not constitute libel per se as the editor unquestion- 792 ably did not intend, and readers did not interpret, the word ‘‘rape’’ as having any sexual connotation in the context used in the article, the editor and the newspaper were properly granted summary judgment as to the contractor’s libel and libel per se claims. Lucas v. Cranshaw, 289 Ga. App. 510, 659 S.E.2d 612 (2008). Defamation actions by public figures. — If public figures bring defamation actions, summary judgment, rather than a trial on the merits, is a proper vehicle for affording constitutional protection if there is no substantive basis for a finding of knowing falsity or reckless disregard. Williams v. Trust Co., 140 Ga. App. 49, 230 S.E.2d 45 (1976). In as much as the First Amendment mandates that a public figure plaintiff prove actual malice by clear and convincing evidence, a court ruling on a motion for summary judgment in a defamation case must be guided by the New York Times ‘‘clear and convincing’’ evidentiary standard in determining whether a genuine issue of actual malice exists — that is, whether the evidence presented is such that a reasonable jury might find that actual malice had been shown with convincing clarity. Barber v. Perdue, 194 Ga. App. 287, 390 S.E.2d 234 (1989), cert. denied, 498 U.S. 967, 111 S. Ct. 430, 112 L. Ed. 2d 414 (1990). Application of public figure standard in libel case. — Summary judgment as to liability was reversed because the intermediate appellate court and the trial court applied the wrong standard of fault to a limited-purpose public figure involved in a controversy over the operation of a county landfill; the New York Times v. Sullivan standard applied, requiring the public figure to prove by clear and convincing evidence that the Internet user published false and defamatory statements knowing that the statements were false or acting in reckless disregard of their truth or falsity. Mathis v. Cannon, 276 Ga. 16, 573 S.E.2d 376 (2002). Application of voluntary payment doctrine. — Voluntary payment doctrine did not bar a city’s unjust enrichment and conversion claims filed against a construction contractor as the contractor failed to show that a genuine issue of material fact 9-11-56 remained over whether the city was negligent in ascertaining the true facts and any prejudice if the duplicate payment were returned to the city. D & H Constr. Co. v. City of Woodstock, 284 Ga. App. 314, 643 S.E.2d 826 (2007). Assertions that were merely opinions. — Trial court properly granted the youth leader’s motion for summary judgment on the troop leader’s libel action since the youth leader’s resignation letter, which, inter alia, alleged that the troop leader was ‘‘immoral’’ and did not live life according to the ideals of scouting did not support a libel action since its assertions were only opinions, incapable of being proved false. Gast v. Brittain, 277 Ga. 340, 589 S.E.2d 63 (2003). Action against police officers. — In an action for false arrest, false imprisonment, and malicious prosecution, the police officers were entitled to summary judgment based on qualified immunity after a school’s principal failed to show the officers acted with actual malice or deliberate intent to injure the principal when the officers arrested the principal for hindering the arrest of two students for fighting and closing a door on an officer’s foot and arm. Reed v. DeKalb County, 264 Ga. App. 83, 589 S.E.2d 584 (2003). Background check agent was entitled to summary judgment on the employee’s claims for negligence, defamation, libel, and slander since the employee’s agreement with the employer, which contained an exculpatory clause releasing the employer and the employer’s agents from any liabilities, claims, or lawsuits in regard to the information obtained in any background check was valid and the libel, slander, and defamation claims were barred by the one year statute of limitations as publication occurred when the agent sent the report to the employer not when the employer fired the employee. McCleskey v. Vericon Res., Inc., 264 Ga. App. 31, 589 S.E.2d 854 (2003). Defenses of lack of jurisdiction and insufficient service. — Defenses of lack of jurisdiction over the person and insufficiency of service of process are matters in abatement, not matters in bar, and are not within the scope of summary judgment procedure. Larwin Mtg. Investors v. Delta 793 Applicability to Certain Actions, Proceedings, Issues, and Defenses (Cont’d) Equities, Inc., 129 Ga. App. 769, 201 S.E.2d 187 (1973). Jurisdictional type motion is not within the scope of summary judgment procedure. Hemphill v. Con-Chem, Inc., 128 Ga. App. 590, 197 S.E.2d 457 (1973). Waiver of most defenses. — Trial court erred to the extent the court ruled that an insurer was prevented from introducing any evidence on liability following a default judgment entered against the insurer because the insurer could still assert policy defenses but, otherwise, by failing to answer timely the insurer was precluded from asserting any affirmative defense included within O.C.G.A. § 9-11-8(c). Willis v. Allstate Ins. Co., 321 Ga. App. 496, 740 S.E.2d 413 (2013). Motions to dismiss for lack of jurisdiction over the person, when tried on affidavits pursuant to O.C.G.A. § 9-11-43(b), do not become motions for summary judgment. McPherson v. McPherson, 238 Ga. 271, 232 S.E.2d 552 (1977); Terrell v. Porter, 189 Ga. App. 778, 377 S.E.2d 540 (1989). Although a defendant’s motion for summary judgment raised the issue of insufficiency of service of process, that defense is a plea in abatement and, as such, it is not properly a basis of a motion for summary judgment, but if the defense is raised for resolution in the trial court and it has not otherwise been waived by the defendant, the nomenclature of the pleading that raises that issue should not be a material consideration. Under these circumstances, the proper disposition of the case is to vacate the order of the trial court on the cross-motions for summary judgment and to remand the case with the direction that the plaintiff ’s complaint be dismissed for insufficiency of service of process. Cheshire Bridge Enters., Inc. v. Lexington Ins. Co., 183 Ga. App. 672, 359 S.E.2d 702, cert. denied, 183 Ga. App. 905, 359 S.E.2d 702 (1987). Dilatory pleas. — Because summary judgment was improperly granted on a dilatory plea, and hence was not an adjudication on the merits, a plea of res 9-11-56 judicata in a subsequent action would be denied. National Heritage Corp. v. Mount Olive Mem. Gardens, Inc., 244 Ga. 240, 260 S.E.2d 1 (1979). Discrimination. — Although there was evidence that a homeowner who listed a house with a real estate agency committed discrimination when the homeowner refused to show the house to African-American homebuyers, the evidence did not support the homebuyers’ claims that the agency and a broker who worked for the agency participated in that discrimination, and the appellate court reversed the trial court’s judgment denying summary judgment in favor of the agency, the broker, and a real estate company that sold a franchise to the agency on the homebuyers’ claims alleging violation of Georgia’s Fair Housing Act, O.C.G.A. § 8-3-200 et seq., and intentional infliction of emotional distress. Coldwell Banker Real Estate Corp. v. DeGraft-Hanson, 266 Ga. App. 23, 596 S.E.2d 408 (2004). Dispute as to meaning of words. — When it is clear from a writing and other evidence that the parties’ intent as to meaning of certain words contained in the writing is in dispute, summary judgment should not be granted. Jones v. Howard, 153 Ga. App. 137, 264 S.E.2d 587 (1980). Language of agreement controlled between exterminator and insurer. — Exterminator was properly granted summary judgment in a home owner’s action to recover additional damages after a settlement for termite damage because the literal language of the agreement made additional repairs the responsibility of an insurer, rather than the exterminator. Anderson v. Astro Exterminating Servs., 259 Ga. App. 370, 577 S.E.2d 67 (2003). Domestication of child support judgments of foreign countries. — In a case in which the plaintiff, a West German resident, sought to domesticate a West German judgment for child support, and because the facts established the defendant’s minimum contacts with West Germany and that the defendant was afforded adequate notice and a reasonable opportunity to be heard in West Germany, the court abused the court’s discretion in failing to rule that the West German judg- 794 ment be domesticated and was enforceable according to the judgment’s terms. Knothe v. Rose, 195 Ga. App. 7, 392 S.E.2d 570 (1990). Failure to file Family Violence Report. — Officers who investigated a claim of possible child abuse failed in the officers’ obligation to file a Family Violence Report, as required by O.C.G.A. § 17-4-20.1(c), and the trial court properly denied a motion for summary judgment pursuant to O.C.G.A. § 9-11-56 by the officers and others in a wrongful death claim on behalf of a deceased child as genuine issues of material fact existed as to whether their failure to investigate and file the necessary report proximately resulted in the child’s injuries and death; the definition of ‘‘family violence’’ was broad under O.C.G.A. § 19-13-1, and although ‘‘reasonable discipline’’ was excepted thereunder, the officers had an obligation to investigate allegations that a child was being whipped. Meagher v. Quick, 264 Ga. App. 639, 594 S.E.2d 182 (2003). Forfeiture of bond. — Jury trial is not required when a bond is forfeited, unless the trial court agrees that there are genuine issues of material fact to be resolved. State v. Slaughter, 246 Ga. 174, 269 S.E.2d 446 (1980). On forfeiture of bond, securities become quasiparties to the proceedings and subject themselves to the jurisdiction of the court so that summary judgment may be rendered on their bonds. State v. Slaughter, 246 Ga. 174, 269 S.E.2d 446 (1980). Counterclaim for payments on bond by co-surety. — Summary judgment was properly entered for a lessee bank on a lessor developer’s counterclaim that alleged that the bank was obligated to pay the entire debt to the bondholder incurred to fund the project, rather than the debt service over the 15-year term of the lease, as the parties knew that the lease term was 15 years and that the term of the note was 20 years, yet failed to specifically provide that the bank pay the debt after the lease expired; parol evidence was inadmissible under O.C.G.A. § 13-2-2(1) to prove the parties’ intentions as the lease was unambiguous. Porter Communs. Co. v. SouthTrust Bank, 268 9-11-56 Ga. App. 29, 601 S.E.2d 422 (2004). Fraud. — Although summary judgment may in a proper case be obtained in an action based on fraud and misrepresentation, summary judgment will be denied if the moving party is not entitled to judgment as a matter of law. Mitchell v. Calhoun, 229 Ga. 757, 194 S.E.2d 421 (1972). If information as to a claimed fraudulent transaction rests exclusively within the knowledge of the participants, and the plaintiff has no means successfully to meet the facts alleged in the defendant’s affidavit, summary judgment should not be granted on the defendant’s affidavit. Mitchell v. Calhoun, 229 Ga. 757, 194 S.E.2d 421 (1972). Because the plaintiff alleged fraud but failed to point to any evidence to prove an essential element of fraud, there remained no genuine issue of material fact, and therefore the trial court did not err in granting the defendant’s motion for summary judgment on the issue of fraud. Brown v. Buffington, 203 Ga. App. 402, 416 S.E.2d 883 (1992). Trial court erroneously granted summary judgment dismissing the home buyers’ fraud claim against the sellers and the sellers’ agent, given various misrepresentations made by the sellers’ agent on the sellers’ behalf, for the purpose of inducing the buyers to purchase the home. Smiley v. S & J Inves., Inc., 260 Ga. App. 493, 580 S.E.2d 283 (2003). When items stolen from an electric company were sold to a supply company, the supply company was not entitled to summary judgment dismissing the electric company’s fraud claim against the supply company because a jury could find that the supply company’s principal knew the items were stolen. Fed. Ins. Co. v. Westside Supply Co., 264 Ga. App. 240, 590 S.E.2d 224 (2003). Trial court erred in granting summary judgment pursuant to O.C.G.A. § 9-11-56(c) to a parent in an action against the parent’s child, alleging fraud and coercion in the child’s failure to transfer assets to the parent after the parent had transferred them to the parent’s two children in order to protect them in the event that the parent was put into a 795 Applicability to Certain Actions, Proceedings, Issues, and Defenses (Cont’d) nursing home; the evidence showed that the parent had control over all faculties and was under no duress, fraud, or coercion while engaging in the transfers to the children, and summary disposition of the issues as to liability and vesting of title back to the parent was inappropriate. Friar v. Friar, 265 Ga. App. 680, 595 S.E.2d 374 (2004). Because it was shown that a decedent, before dying, substantially depleted his assets by making gifts to his wife and by purchasing land in the name of a corporate entity without consideration from the entity, a jury could infer that the decedent was intentionally depleting his assets to deprive his ex-wife of access to those assets in claims under the terms of a settlement agreement between the decedent and the ex-wife. Since such actions could be construed as an intent to defraud, it was error to grant the decedent’s executor, the decedent’s surviving wife, and the corporate entity summary judgment on claims of fraud. Miller v. Lomax, 266 Ga. App. 93, 596 S.E.2d 232 (2004). Buyer presented enough evidence to raise issues of fact concerning the buyer’s claim that the sellers knew about the condition of a septic system before the sellers sold the house and intentionally misled the buyer by telling the buyer that the system was in ‘‘perfect working order,’’ and the trial court erred by granting the sellers’ motion for summary judgment on the buyer’s claim alleging fraud. Hudson v. Pollock, 267 Ga. App. 4, 598 S.E.2d 811 (2004). Summary judgment for storage companies in an owner’s fraud claim was proper because: (1) the parties’ contract contained a merger clause; (2) the owner did not seek to rescind the contract until the owner filed a complaint; (3) by seeking damages for breach of contract in the owner’s complaint, the owner took action inconsistent with a repudiation; (4) the owner delayed almost nine months in attempting to rescind the contract; and (5) since the owner failed to promptly rescind the contract, the merger clause barred the 9-11-56 owner’s fraud claim. Liberty v. Storage Trust Props., L.P., 267 Ga. App. 905, 600 S.E.2d 841 (2004). In an action between a home builder and its buyers, the trial court did not err in granting summary judgment on the buyers’ fraud claim as: (1) the terms of the construction contract explicitly acknowledged that the construction price was based on allowances set in the budget and would change if actual costs exceeded the original allowance amount; (2) the buyers both acknowledged that the buyers understood that the original contract price was not a fixed price, and that the buyers would be responsible for actual costs that exceeded the allowances contained in the contract; (3) the buyers admitted that a portion of the additional costs resulted from changes that the buyers had requested; and (4) as a result, the mere existence of the change orders did not indicate that the builder fraudulently induced the buyers to enter into the contract. Davis v. Whitford Props., 282 Ga. App. 143, 637 S.E.2d 849 (2006). Trial court did not err in granting a car dealer summary judgment against a customer’s fraud claim as: (1) the customer’s contention that the dealer knew of the alleged defects in a car sold to the customer at the time of the sale was specifically negated by affidavits submitted by the dealer’s service and maintenance employees; and (2) even if the dealer knew of the car’s defectiveness after the sale, this knowledge did not amount to either knowledge, or a reckless disregard of the car’s defectiveness, at the time of the sale; hence, as a result, the trial court did not err in granting the dealer’s motion for summary judgment on the customer’s claims for attorney fees under O.C.G.A. § 13-6-11, costs, and punitive damages pursuant to O.C.G.A. § 51-12-5.1. Morris v. Pugmire Lincoln Mercury, Inc., 283 Ga. App. 238, 641 S.E.2d 222 (2007). Dissolution of nonprofit corporation. — Trial court erred in entering summary judgment for a college as to a Baptist convention’s request to enjoin the college from dissolving as: (1) the convention was a member of the college under the Georgia Nonprofit Corporations Code, specifically under an earlier version of 796 O.C.G.A. § 14-3-140; (2) the college’s attempt at dissolving was a sham as the college intended to continue its functions under a new corporate entity; (3) the corporate reorganization was either a merger under O.C.G.A. § 14-3-1103(a)(3) or a disposition of assets under O.C.G.A. § 14-3-1202(b)(3), but it was not a true dissolution, and absent the convention’s approval, it could not stand; and (4) O.C.G.A. § 14-3-1430(2)(A) did not justify the dissolution as the convention was the only member and it did not seek dissolution. Baptist Convention v. Shorter College, 266 Ga. App. 312, 596 S.E.2d 761 (2004), aff ’d, 279 Ga. 466, 614 S.E.2d 37 (2005). Stockholders’ declaratory judgment action. — Because no evidence was presented that the shares in the administratively dissolved company which the stockholders originally purchased, and which pre-dated the corporation’s formation, were ever transformed into the corporation’s stock, and the stockholders’ fraud claims were vague at best, the corporation was properly granted summary judgment in the stockholders’ declaratory judgment action seeking a declaration that the stockholders owned stock in the corporation based on the stockholders’ purchase of stock in the administratively dissolved company. Wright v. AFLAC, Inc., 283 Ga. App. 890, 643 S.E.2d 233 (2007). Georgia Public Service Commission. — Actions against the Georgia Public Service Commission are not exempt from the summary judgment procedures of O.C.G.A. § 9-11-56. Statesboro Tel. Co. v. Georgia Pub. Serv. Comm’n, 235 Ga. 179, 219 S.E.2d 127 (1975). Application to Telephone Customer Protection Act. — Because a telephone customer was enrolled in a radio station’s discount program, calls containing unsolicited advertisements fell within the established business relationship exemption and were not automatically prohibited by the Telephone Customer Protection Act (TCPA), 47 U.S.C. § 227; the telephone customer was barred from recovering under the TCPA, and summary judgment in favor of the radio station was affirmed. Schneider v. Susquehanna Radio Corp., 260 Ga. App. 296, 581 S.E.2d 603 (2003). 9-11-56 Open Records Act. — In denying a request under the Open Records Act (ORA), O.C.G.A. § 50-18-70 et seq., an agency was limited to the authority cited in denying an initial request; an insurance commissioner’s refusal to disclose an investigation report and records was an abuse of discretion based on the reasons provided for denying the request, and an order granting summary judgment in favor of the commissioner and denying an individual’s summary judgment motion in an ORA action was reversed. Hoffman v. Oxendine, 268 Ga. App. 316, 601 S.E.2d 813 (2004). Insufficiency in the allegations of a complaint is not a matter that is proper for review on a motion for summary judgment if the allegations of the complaint are considered well-pled and the single issue before the court is whether on the merits the moving party in the position of a defendant has carried the party’s burden of showing that as a matter of law the party in the position of a plaintiff is not entitled to relief because one essential element under any theory of recovery is lacking and incapable of proof. Robinson v. Starr, 197 Ga. App. 440, 398 S.E.2d 714 (1990). Insurance fraud. — Issues of fact concerning whether a former employee actually signed an insurance card and whether an insurer detrimentally relied upon alleged misrepresentations precluded the award of summary judgment in the insurer’s fraud action against a former employee. Centennial Life Ins. Co. v. Smith, 210 Ga. App. 194, 435 S.E.2d 498 (1993). Summary judgment was properly granted for the insurer because the insured’s complaint fell outside the four-year statute of limitation for fraud and negligent misrepresentation claims. Nash v. Ohio Nat’l Life Ins. Co., 266 Ga. App. 416, 597 S.E.2d 512 (2004). Auto insurance contracts. — Since there was no law or policy requiring insurance coverage for negligent service of alcohol, the home insurer’s motor vehicle exclusion applied as the injured party’s damages arose out of an automobile accident, and the alleged independent act of negligence did not negate the exclusion. 797 Applicability to Certain Actions, Proceedings, Issues, and Defenses (Cont’d) Manning v. USF&G Ins. Co., 264 Ga. App. 102, 589 S.E.2d 687 (2003). When an injured party sued the insurer of a motorist against whom the injured party obtained a judgment, both to collect on the judgment and to assert a claim, as assignee of the motorist, for bad faith failure to settle, the insurer was not entitled to summary judgment because, even though the motorist did not provide the insurer with notice of the claim, the injured party provided the insurer with sufficient notice, under O.C.G.A. § 33-7-15(c), when it provided the insurer a copy of the complaint, with a court clerk’s notation of the case number and the date on which the complaint was filed, and the insurer did not show that the injured party’s failure to provide the insurer with a copy of the summons deprived it of the ability to timely and adequately investigate the claim. Canal Indem. Co. v. Greene, 265 Ga. App. 67, 593 S.E.2d 41 (2003). Trial court properly entered summary judgment against a corporation’s insurer as the corporation was the named insured on a policy, notwithstanding the policy’s identification of the named insured as an individual, doing business as a trade name, as the insurer filed a certificate of insurance with the Georgia Public Service Commission, pursuant to former O.C.G.A. § 46-7-12(a), stating that it had insured the corporation, doing business as the trade name; as the insurer failed to rebut testimony that a truck owned by the individual was involved in an accident while it was engaged in the corporation’s business, the injured parties’ collision with the truck was covered by the policy. Hartford Cas. Ins. Co. v. Smith, 268 Ga. App. 224, 603 S.E.2d 298 (2004). Summary judgment was properly entered for an insurer in the injured parties’ declaratory judgment suit as the insurer clearly stated that the insurer was issuing one contract, albeit in two sections, and that the insurer’s insured was entitled to only one payout; the insurer issued two policy numbers and two declarations 9-11-56 pages to the insured as the insurer could only accommodate four vehicles under the insurer’s policy declarations, and the insured had seven vehicles. Smith v. Allstate Ins. Co., 268 Ga. App. 229, 603 S.E.2d 302 (2004). Since an injured person was neither named in the policy covering the vehicle in which the person was riding at the time of an accident, nor residing in the same household as the policy holder, and was not a beneficiary of the other four policies owned by the policyholder, the injured person was not entitled to stack the policies; thus, a trial court’s summary judgment in favor of the insurance company was affirmed. Beard v. Nunes, 269 Ga. App. 214, 603 S.E.2d 735 (Aug. 23, 2004). Trial court properly entered partial summary judgment for an insurer and refused to extend the full limits of the policy to the injured parties; the policy excluded ‘‘any loss arising out of ’’ the use of an automobile by any person living with the insured, which covered the driver, and the injured parties were injured due to the driver’s actions in driving an automobile. Carver v. Empire Fire & Marine Ins. Co., 270 Ga. App. 100, 605 S.E.2d 842 (2004). In an action concerning the limits of uninsured motorist (UM) coverage available under a claimant’s policy, which was held with the claimant’s husband who was the named insured thereunder, their insurer was properly granted summary judgment on that issue as the 2001 amendment to O.C.G.A. § 33-7-11 had no effect on the limits of UM coverage under the policy covering the claimant’s vehicle, and as such, the insurer was not required to notify the claimant of the change in the law or to secure a separate UM election at the time this vehicle was added to the original insurance policy. Soufi v. Haygood, 282 Ga. App. 593, 639 S.E.2d 395 (2006). Insurance provision in murdersuicide case. — Because substantial fact issues existed as to whether an insurance policy provision transferring ownership to the insured was activated in an apparent murder-suicide case, and whether the insured had murdered his wife, the owner of the policy, it was error of the court to grant summary judgment. Bland v. Ussery, 172 798 Ga. App. 131, 322 S.E.2d 335 (1984). Insurance contracts. — As the facts were not in dispute and a proper construction of the unambiguous language of the vacancy exclusion of an insurance policy showed that the vandalism that occurred in a certain insured building was not a covered loss because the building had been vacant for more than 60 days prior to the loss, the trial court should have granted the insurer summary judgment in an action by the buyer of the building, who was the assignee of the insured, to recover for the vandalism damage. Sorema N. Am. Reinsurance Co. v. Johnson, 258 Ga. App. 304, 574 S.E.2d 377 (2002). Trial court erred in granting summary judgment to the casualty insurance company on the insured’s claim for damages under the insured’s insurance policy it had on the insured’s property that was destroyed by fire as the purpose of summary judgment was to determine whether there was a triable issue of fact and whether the insured submitted to an examination as required under the policy could not be determined until that issue was tried. The error occurred because the insured submitted to an examination, but left the examination after three hours of questioning when the insured became angry at the way the insured was being questioned, although the insured did say as the insured left that the insured would continue the questioning with the assistance of the court. Evans v. Ohio Cas. Ins. Co., 264 Ga. App. 485, 591 S.E.2d 378 (2003). When an insurer sought a declaratory judgment defining the insurer’s rights and responsibilities under an insurance policy issued to an insured cemetery that was sued for desecrating a grave, the construction of the policy was a matter for the court that could be resolved by summary judgment. Nationwide Mut. Fire Ins. Co. v. Somers, 264 Ga. App. 421, 591 S.E.2d 430 (2003). When an insured sued an insurance agent for fraud and breach of fiduciary duty because the agent allegedly misrepresented the coverage afforded by a policy the insured purchased through the agent, the insured’s failure to read the policy entitled the agent to summary judgment, 9-11-56 as no confidential relationship between the insured and the agent existed. Canales v. Wilson Southland Ins. Agency, 261 Ga. App. 529, 583 S.E.2d 203 (2003). Trial court properly declined to rule, as a matter of law, that when a child was with the noncustodial parent, the child was not a ‘‘resident’’ of the noncustodial parent’s home for insurance coverage purposes; the questions of domicile and residence were typically fact questions left to the jury, and because the parents had joint custody of a child killed in a home accident while staying at the noncustodial father’s home, a jury could find that the child was in fact a resident of the father’s home at the time of the accident. Baldwin v. State Farm Fire & Cas. Co., 264 Ga. App. 229, 590 S.E.2d 206 (2003). Denial of an insurance company’s summary judgment motion in a declaratory action brought against an injured person seeking a determination regarding coverage obligations in the injured person’s underlying assault and battery claim was reversed because the injured person conceded that there was no coverage, but asserted estoppel based on delays in sending the reservation of rights notice and in filing the declaratory judgment action; since the injured person had no rights under the policy, the injured person was not allowed to sue the insurance company directly, and the injured person also lacked standing to assert the defense of waiver or estoppel against the insurance company for failing to provide a timely notice of reservation of rights. Capitol Indem. Corp. v. Fraley, 266 Ga. App. 561, 597 S.E.2d 601 (2004). Trial court’s grant of summary judgment pursuant to O.C.G.A. § 9-11-56 to an insurer in an insured’s declaratory judgment action seeking a coverage determination was erroneous because the insured, who worked as a roofing supervisor for a livelihood, had been engaged in manual roofing labor for the insured’s pastor as a favor at the time of the incident and, accordingly, the insured’s actions were not excluded under either the business pursuits exclusion nor under the professional services exclusion as roofing was a trade or occupation; the insured’s notice to the insurer within a month of being sued was 799 Applicability to Certain Actions, Proceedings, Issues, and Defenses (Cont’d) reasonably timely. Cunningham v. Middle Ga. Mut. Ins. Co., 268 Ga. App. 181, 601 S.E.2d 382 (2004). Upon an insurer’s interlocutory appeal, the appeals court found that the insurer was properly denied summary judgment on an insured’s individual and class action claims for unearned insurance premiums owed under credit life and disability policies as the insured satisfied any contractual notice requirements to filing suit, the class was properly certified, and the insured adequately represented the interests of the class. J.M.I.C. Life Ins. Co. v. Toole, 280 Ga. App. 372, 634 S.E.2d 123 (2006). In an action between an insurer and its insured regarding the insured’s claim for additional coverage, because the provisions regarding blanket liability and additional limits of liability were ambiguous, and application of O.C.G.A. § 13-2-2 was insufficient to eliminate the ambiguity in that it was impossible to ascertain how much coverage was provided for the items at issue, particularly soft cost, a jury was to consider the circumstances surrounding the transaction to determine the scope and effect of the policy; hence, the insured was erroneously granted partial summary judgment on the issue. RLI Ins. Co. v. Highlands on Ponce, LLC, 280 Ga. App. 798, 635 S.E.2d 168 (2006). Trial court’s grant of summary judgment was upheld on appeal, in an insurance applicant’s negligent misrepresentation action filed against an agency and its agent, as the applicant failed to include the insurance application, that was the focus of the suit, in the appellate record. Hattaway v. Conner, 281 Ga. App. 20, 635 S.E.2d 330 (2006). In an action filed against an insurer seeking coverage under a homeowners policy, the insureds were properly denied coverage for damages to a home the insureds did not live in, and the insurer was properly granted summary judgment on the issue of coverage as the policy at issue clearly stated that the ‘‘insured premises’’ meant the residence the insureds used as 9-11-56 their primary residence. Varsalona v. Auto-Owners Ins. Co., 281 Ga. App. 644, 637 S.E.2d 64 (2006). Trial court erred in denying an insurer’s motion for summary judgment as to the issue of coverage as an assault and battery exclusion contained in the insurer’s commercial general liability policy barred coverage to the insured for damages claims arising from a shooting on the insured’s premises in a wrongful death action filed against the insured; moreover, inclusion of the phrase ‘‘whether or not’’ in the exclusion was significant and made clear that the exclusion was intended to apply to all instances of assault and battery occurring on the premises. First Specialty Ins. Corp. v. Flowers, 284 Ga. App. 543, 644 S.E.2d 453 (2007). Trial court did not err in granting an insurer summary judgment in the insurer’s declaratory judgment action finding that the insurer owed no duty to the insured to defend or indemnify the insured in an action filed by the insured’s client who was injured in an accident involving the covered vehicle as the policy at issue showed no liability coverage and, hence, did not obligate the insurer to that duty. Simalton v. AIU Ins. Co., 284 Ga. App. 152, 643 S.E.2d 553 (2007). In a breach of contract action filed by an insured against an insurer, the trial court did not err in granting the insurer summary judgment as to the issue of coverage as questions answered untruthfully in the application for insurance by the insured amounted to misrepresentations warranting a cancellation of the policy at issue, pursuant to O.C.G.A. § 33-24-7. T. J. Blake Trucking, Inc. v. Alea London, Ltd., 284 Ga. App. 384, 643 S.E.2d 762 (2007), cert. denied, No. S07C1101, 2007 Ga. LEXIS 505 (Ga. 2007). Because Georgia contract law stated that the statute of limitation on a contract which contemplated an actual demand began to run 30 days after notice was sent of the amount due, as contemplated by the contract between an insured and the insured, the trial court erred in finding that the insurer’s claim for reimbursement from the insured was time-barred; thus, summary judgment in favor of the insured was inappropriate. Canal Ins. Co. v. Pro 800 Search, 286 Ga. App. 164, 648 S.E.2d 497 (2007), cert. denied, 2007 Ga. LEXIS 870 (Ga. 2007). Trial court properly granted summary judgment to an insured in the insurer’s declaratory judgment action, requiring the insurer to defend and indemnify the insured in the underlying suit filed by a resident of the insured’s personal care home arising from an attack by a fellow resident as the incident occurred without the insured’s foresight, expectation, or design, and was thus properly characterized as accidental under the terms of the insured’s policy. Cincinnati Ins. Co. v. Magnolia Estates, Inc., 286 Ga. App. 183, 648 S.E.2d 498 (2007), cert. denied, 2008 Ga. LEXIS 88 (Ga. 2008). Due to the inadequacies of an insured’s bad faith demand, as its attempt to equate the submission of a claim with the demand for payment required by O.C.G.A. § 33-4-6 was directly contravened by case law, and the fact that the insurer met all the insurer’s obligations under the policy the insurer issued to the insured, the trial court did not err in denying summary judgment to the insured and granting summary judgment on the insurer’s cross-motion, authorizing the insurer to quitclaim the refinanced property to the insurer in full satisfaction of the insurer’s duties and obligations under the policy. BayRock Mortg. Corp. v. Chi. Title Ins. Co., 286 Ga. App. 18, 648 S.E.2d 433 (2007), cert. denied, 2008 Ga. LEXIS 108 (Ga. 2008). Because the damages a tenant sought under a commercial general liability policy issued to the insured-landlord for carbon monoxide poisoning were clearly excluded by the unambiguous terms contained within an exclusion under the policy, the trial court erred in denying the insurer’s motion for summary judgment as to the issue of coverage. Auto-Owners Ins. Co. v. Reed, 286 Ga. App. 603, 649 S.E.2d 843 (2007), aff ’d, 284 Ga. 286, 667 S.E.2d 90 (2008). Given that the language in an insurance contract providing for catastrophic coverage only extended to inpatient, and not outpatient, services, the trial court properly granted summary judgment as to the issue of the insurer’s coverage as the 9-11-56 hospital bill for which the insured sought payment was for outpatient services. Michna v. Blue Cross & Blue Shield of Ga., Inc., 288 Ga. App. 112, 653 S.E.2d 377 (2007), cert. denied, 2008 Ga. LEXIS 214 (Ga. 2008). Under the ordinary rules of contract construction, because: (1) no ambiguity in an insurance contact existed; and (2) the insurer was authorized to reduce the uninsured motorist policy limits therein per the directions of the insured, no error resulted from the trial court’s order granting summary judgment to an insurer as to the issue of coverage. Moreover, separate signatures rejecting bodily injury coverage and property damage coverage were not required, and the court did not rely upon affidavits containing inadmissible evidence. Lambert v. Alfa Gen. Ins. Corp., 291 Ga. App. 57, 660 S.E.2d 889 (2008). Summary judgment was properly granted to an insured pursuant to O.C.G.A. § 9-11-56(c) and denied to an insurer in the insured’s action seeking to collect unpaid claims under the insured’s policy wherein the insured was entitled to indemnification for losses arising from employee dishonesty; however, based on the construction rules of O.C.G.A. § 13-2-2, the ambiguous non-cumulative policy liability limit was construed in the insured’s favor, but could not be interpreted to allow the limit for each of the years of coverage, but rather, the limit was applied to the entire three-year policy period. Cincinnati Ins. Co. v. Sherman & Hemstreet, Inc., 260 Ga. App. 870, 581 S.E.2d 613 (2003), aff ’d, 277 Ga. 734, 594 S.E.2d 648 (2004). Insurance settlement. — Trial court properly granted summary judgment to the vehicle owner in the insurer’s suit against the vehicle owner after the insurer settled a claim with an injured victim after the company employee who rented a vehicle from the vehicle owner was involved in an accident that injured the victim; since no evidence showed the insurer and the vehicle owner contracted otherwise, Georgia statutory law dictated that the renter’s liability insurance coverage, provided by the insurer, was the primary insurance and the vehicle owner’s insurance provided secondary cover- 801 Applicability to Certain Actions, Proceedings, Issues, and Defenses (Cont’d) age. Zurich Am. Ins. Co. v. General Car & Truck Leasing Sys., 258 Ga. App. 733, 574 S.E.2d 914 (2002). In an action claiming beneficiary status to two annuities issued to a decedent, the trial court properly granted summary judgment to a foundation, and against an individual, on grounds that the decedent failed to do all that was necessary to change the beneficiary of the decedent’s annuities to the individual, as such was specifically required for the change of beneficiary designation to go into effect, and substantial compliance with the requirements was insufficient; hence, no material fact issues remained. Lake v. Young Harris Alumni Found., Inc., 283 Ga. App. 409, 641 S.E.2d 628 (2007). Uninsured motorist coverage. — Conclusion that an insurer was only obligated to provide an insured with $40,000 of uninsured motorist (UM) coverage was supported by both the unambiguous policy language and by the fact that the insured admitted that the insured had not made a written request pursuant to former O.C.G.A. § 33-7-11(a)(3) for an increase in UM coverage above the minimum coverage required at the time of the accident; thus, the trial court properly granted the insurer summary judgment on the insurer’s request for a declaration that the insured only had $40,000 of UM coverage. Payne v. Middlesex Ins. Co., 259 Ga. App. 867, 578 S.E.2d 470 (2003). Because Georgia public policy prohibited an exclusion within an insurer’s uninsured coverage for the use of any motor vehicle by an insured to carry persons or property for a fee, as such denied the statutorily mandated coverage to an otherwise qualified insured, and the requirements under O.C.G.A. § 33-7-11 were plain and not illogical, summary judgment in favor of the insurer on this issue was reversed. Wagner v. Nationwide Mut. Fire Ins. Co., 288 Ga. App. 132, 653 S.E.2d 526 (2007). Trial court erred in denying motions for summary judgment pursuant to O.C.G.A. § 9-11-56 by an insurer in a declaratory 9-11-56 judgment action pursuant to O.C.G.A. § 9-4-2 seeking to determine whether the insurer had a duty to defend, and by the owners of an automobile on claims of negligent entrustment by the plaintiffs, a driver and passengers; the owners’ son, who was driving the vehicle when the accident occurred, did not have permission to drive the vehicle, and therefore the son was not an insured under the owners’ insurance policy. Metro. Prop. & Cas. Ins. Co. v. McCall, 261 Ga. App. 92, 581 S.E.2d 651 (2003). Parent who filed a wrongful death action against an unidentified driver after a child’s body was found by the side of a road presented no evidence that the unidentified driver was negligent or that the driver’s actions caused the decedent’s death, and the appellate court affirmed the trial court’s judgment granting a motion for summary judgment, which was filed by an insurance company that provided uninsured motorist coverage. Dawkins v. Doe, 263 Ga. App. 737, 589 S.E.2d 303 (2003). Trial court erroneously granted summary judgment to an UM insurer because the injured claimant, who was also a federal employee, fell under the purview of federal compensation law; thus, under these federal provisions, the medical benefits insurer and the workers’ compensation insurer had subrogation liens and were able to enforce the liens upon the injured party’s receipt of a settlement from the liable third party, regardless of Georgia’s requirement that such action be preceded by a determination that the injured person had been fully compensated. Thurman v. State Farm Mut. Auto. Ins. Co., 278 Ga. 162, 598 S.E.2d 448 (2004). Insured who tried to recover damages for injuries the insured sustained in a motor vehicle accident in Florida, but who alleged that the insured’s claim was denied because the insured’s did not have the right to sue under Florida’s no-fault statute, was entitled to collect uninsured motorist benefits from the insured’s own insurance company, pursuant to O.C.G.A. § 33-7-11. However, the trial court, which heard the insured’s action against, erred when the court denied the company’s motion for summary judgment on the in- 802 sured’s claim seeking penalties and attorney fees, pursuant to O.C.G.A. § 33-4-6, because the case presented a unique issue of law and there was no evidence that the company acted in bad faith when the company denied the insured’s claim. Ga. Farm Bureau Mut. Ins. Co. v. Williams, 266 Ga. App. 540, 597 S.E.2d 430 (2004). Insurance coverage on dealer ‘‘loaner’’ vehicle. — Nothing required an insurer to provide excess insurance on a ‘‘loaner’’ car above the statutory minimum limits but the law required excess coverage in an amount not less than the limits; summary judgment reducing coverage below the limits was error. Hendrix v. Universal Underwriters Ins. Co., 263 Ga. App. 589, 588 S.E.2d 761 (2003). Death while pursued by emergency vehicles. — Trial court erred in denying summary judgment to a city and the city’s employees in a wrongful death action; a police officer’s actions were not the proximate cause of the decedent’s death during a crash with a vehicle that was fleeing from the police at high speed, and therefore O.C.G.A. § 40-6-6 did not apply. City of Pooler v. Edenfield, 263 Ga. App. 278, 587 S.E.2d 408 (2003). Punitive damages may not be recovered if there is no entitlement to compensatory damages; because a homeowner had settled the property damage claim arising from an incident in which a truck struck the homeowner’s house, and was not allowed to recover under the bodily injury provision of the policy since the homeowner was not injured in and did not witness the incident, summary judgment for an insurance company in the company’s declaratory judgment action addressing the company’s liability on the homeowner’s punitive damage claim was affirmed. Flynn v. Allstate Ins. Co., 268 Ga. App. 222, 601 S.E.2d 739 (2004). Insurer coverage. — An insurer was entitled to summary judgment in the insurer’s declaratory judgment action because the insurer’s policy did not cover an injured bar patron’s claims against an insured, an investigations and security firm that serviced the bar, because the subject policy’s clear exclusions for assault, battery, and punitive damages did 9-11-56 not conflict with a security guard endorsement. Capitol Indem., Inc. v. Brown, 260 Ga. App. 863, 581 S.E.2d 339 (2003). State benefit health plan claims administrator was properly granted summary judgment in an action challenging the administrator’s review of a physician’s corporation’s health plan claims because, in part, the administrator had no duty to produce the administrator’s policies absent a confidential relationship, which was not established merely by the corporation’s trust and confidence in the administrator. Brown v. Blue Cross Blue Shield of Ga., Inc., 260 Ga. App. 796, 581 S.E.2d 636 (2003). In a declaratory judgment action, the insurer was entitled to summary judgment on the parents’ claim since the homeowners policy issued to the insured specifically excluded coverage for injury to the parents’ son, who was shot and killed by the insured’s son during an aggravated assault at a pizza restaurant; the exclusion authorized the trial court to find, as a matter of law, that a reasonable person in the insured’s son’s circumstances could expect bodily harm to result from the son’s criminal actions. Tripp v. Allstate Ins. Co., 262 Ga. App. 93, 584 S.E.2d 692 (2003). Absent an insurance clause showing mutual intent for a subcontractor’s insurance to cover losses to the store and contractor, an indemnity clause was statutorily void and unenforceable; thus, summary judgment was properly denied. Federated Dep’t Stores v. Superior Drywall & Acoustical, 264 Ga. App. 857, 592 S.E.2d 485 (2003). Summary judgment in favor of cities and an insured in a declaratory judgment action brought by the insured’s insurer was reversed; the underlying claim by the cities against the insured was for loss of grant monies arising from the alleged improper preparation of applications that did not fit into the policy definition of a property loss, and since the policy also excluded losses related to professional services, the insurer had no duty to defend. Nationwide Mut. Fire Ins. Co. v. City of Rome, 268 Ga. App. 320, 601 S.E.2d 810 (2004). Trial court properly granted summary judgment pursuant to O.C.G.A. 803 Applicability to Certain Actions, Proceedings, Issues, and Defenses (Cont’d) § 9-11-56(c) to an insured in the insured’s breach of insurance contract claim against an insurer for the insurer’s failure to pay a claim, arising from water and sewage damage to the insured’s offices; heavy rains had seeped into a large pit that was excavated by the city, which then flowed into a pipe that overflowed into the insured’s office, and such water was not within the well-accepted definition of ‘‘surface water,’’ such that the policy’s surface water exclusion was inapplicable. Selective Way Ins. Co. v. Litig. Tech., Inc., 270 Ga. App. 38, 606 S.E.2d 68 (2004). In a mother’s suit claiming that an insurer breached an insurance contract with the son by failing to defend the son in the mother’s suit brought against the son arising out of a car accident occurring when the son was driving the mother’s car, summary judgment was properly granted on the issue of insurance coverage under the policy, which obligated the insurer to pay damages for which the insured was legally liable because of damages arising out of an accident involving the insured car or a car which was not owned by a resident of the insured’s household because, while the mother and the son lived in the same house, this was not determinative of the question of whether the mother was a resident of the son’s household. The mother’s proof showed that she and her son maintained distinct households under different management, in that they each were responsible for separate parts of the house, did not cook or clean for each other, and came and went independently; and the insurer offered no evidence to counter the mother’s proof. Southern Gen. Ins. Co. v. Foy, 279 Ga. App. 385, 631 S.E.2d 419 (2006). Because the trial court erred in construing an insurer’s policy to its insured, and a fact question remained as to an issue of slander, summary judgment was inappropriately entered; but, the insurer was not required to provide specific, unambiguous reasons for denying coverage in its reservation of rights letter to the insured. Southern Gen. Ins. Co. v. Foy, 279 Ga. App. 385, 631 S.E.2d 419 (2006). 9-11-56 Because: (1) resolution of the issues raised in a petition filed by the Georgia Insurers Insolvency Pool were dependent upon a determination by the State Board of Workers’ Compensation of the amount, if any, an injured employee was entitled to recover in the pending, unresolved claim for workers’ compensation; and (2) after a notice to controvert was filed, the Board never held a hearing or issued any findings with regard to liability for the claim, the trial court lacked subject matter jurisdiction to determine the applicability of earlier provisions of O.C.G.A. § 33-36-14(a) to the Pool’s claim against an insurer, after another carrier became insolvent, and hence, grant the Pool summary judgment in its declaratory judgment action. Royal Indem. Co. v. Ga. Insurers Insolvency Pool, 284 Ga. App. 787, 644 S.E.2d 279 (2007), cert. denied, 2007 Ga. LEXIS 639 (Ga. 2007). Intent. — In a declaratory judgment action by an insurance company asking for an interpretation of an insurance policy that excludes coverage for injuries expected or intended by the insured, because the insured, while intoxicated, shot and killed his son and daughter-in-law, the question of intent or expectation uniquely fits the pattern of those issues of material fact that are not appropriate issues for summary judgment but are decided by the trier of fact. State Farm Fire & Cas. Co. v. Morgan, 258 Ga. 276, 368 S.E.2d 509 (1988). Summary judgment in corporate actions. — Trial court properly granted summary judgment to a president of a corporation in the president’s petition to remove a lis pendens, which alleged that the president purchased property with embezzled funds as the shareholder’s allegation was used to support the shareholder’s tort claims of, inter alia, conversion and breach of fiduciary duty; thus, a lis pendens was unauthorized and the president could not be charged with notice of it. Hudson v. Dobson, 260 Ga. App. 473, 580 S.E.2d 268 (2003). Summary judgment in estate matters. — In an action for conversion of the estate’s assets relating to a joint account created under O.C.G.A. § 7-1-813 between the executrix and a half-sister, 804 given that some evidence existed that the decedent’s purpose in establishing a joint account between the executrix of decedent’s estate and the half-sister was for the decedent’s convenience, and not to effect a gift, summary judgment was erroneously granted to the half-sister. Gray v. Benton, 280 Ga. App. 339, 634 S.E.2d 86 (2006). Summary judgment in matters involving a trust. — In a declaratory judgment action between a settlor’s offspring regarding an agreement signed by the settlor to reform a trust, the trial court properly granted summary judgment to one sibling over the other, upholding the agreement as validly reforming the trust in order to fully effectuate the settlor’s intent that the offspring divide the remainder of a trust’s proceeds equally between them, per stirpes; moreover, the trial court correctly ruled that the prevailing sibling could not rely on the defenses of laches and unclean hands as such were equitable doctrines not applicable in a declaratory judgment action. Briden v. Clement, 283 Ga. App. 626, 642 S.E.2d 318 (2007). Laches. — If it cannot be said as a matter of law that a plaintiff was dilatory in asserting a claim, the defense of laches is a question for the jury, and summary judgment cannot be granted for the defendant on such issue. Davidson Mineral Properties, Inc. v. Gifford-Hill & Co., 235 Ga. 176, 219 S.E.2d 133 (1975). Mandamus actions. — Fact that O.C.G.A. § 9-6-20 et seq. provides rules under which mandamus actions shall be tried would not make O.C.G.A. § 9-11-56 inapplicable in mandamus actions because there is no express conflict between the sections. Harrison v. Weiner, 226 Ga. 93, 172 S.E.2d 840 (1970). Matters in abatement and in bar. — Motion for summary judgment applies to the merits of a claim or to matters in bar, but not to matters in abatement. Boyd Motors, Inc. v. Radcliff, 128 Ga. App. 15, 195 S.E.2d 291 (1973); Larwin Mtg. Investors v. Delta Equities, Inc., 129 Ga. App. 769, 201 S.E.2d 187 (1973). Defenses enumerated in O.C.G.A. § 9-11-12(b), except for failure to state a claim upon which relief can be granted, 9-11-56 are matters in abatement, which are not within the scope of summary judgment procedure. Boyd Motors, Inc. v. Radcliff, 128 Ga. App. 15, 195 S.E.2d 291 (1973); Ogden Equip. Co. v. Talmadge Farms, Inc., 232 Ga. 614, 208 S.E.2d 459 (1974); International Indem. Co. v. Blakey, 161 Ga. App. 99, 289 S.E.2d 303 (1982); Kirkpatrick v. Mackey, 162 Ga. App. 876, 293 S.E.2d 461 (1982). Motion for summary judgment cannot be granted on matters in abatement. Ogden Equip. Co. v. Talmadge Farms, Inc., 232 Ga. 614, 208 S.E.2d 459 (1974); Carlson v. Hall County Planning Comm’n, 233 Ga. 286, 210 S.E.2d 815 (1974); Walsey v. Lockhart, 136 Ga. App. 624, 222 S.E.2d 141 (1975); C.W. Matthews Contracting Co. v. Capital Ford Truck Sales, Inc., 149 Ga. App. 354, 254 S.E.2d 426 (1979); Primas v. Saulsberry, 152 Ga. App. 88, 262 S.E.2d 251 (1979); Safwat v. United States Leasing Corp., 154 Ga. App. 341, 268 S.E.2d 395 (1980); Bennett v. Fine Jewelers Atl. Guild, Inc., 194 Ga. App. 377, 390 S.E.2d 625 (1990). Summary judgment involves an adjudication on the merits, and should not be used in ruling on a dilatory plea or plea in abatement. National Heritage Corp. v. Mount Olive Mem. Gardens, Inc., 244 Ga. 240, 260 S.E.2d 1 (1979). Matters in abatement are raised and resolved under O.C.G.A. § 9-11-12, and are not proper subjects for a motion for summary judgment. Hight v. Blankenship, 199 Ga. App. 744, 406 S.E.2d 241 (1991). As a determination whether compliance with the ante litem notice requirement of O.C.G.A. § 36-33-5 was met by property owners who asserted claims against a municipality was properly considered a matter in abatement, which should have been raised in a motion to dismiss under O.C.G.A. § 9-11-12, flexibility by the court was required; accordingly, consideration of the matter within the summary judgment context, pursuant to O.C.G.A. § 9-11-56, was proper because matters outside of the pleadings, including the owners’ depositions, were considered. Davis v. City of Forsyth, 275 Ga. App. 747, 621 S.E.2d 495 (2005). Peer review. — Under the Health Care Quality Improvement Act of 1986, specif- 805 Applicability to Certain Actions, Proceedings, Issues, and Defenses (Cont’d) ically 42 U.S.C. § 11112(a)(4), a professional review action is presumed to have met the requisite conditions for immunity unless the presumption is rebutted by a preponderance of the evidence; thus, in ruling on a motion for summary judgment under the Act, the trial court is required to determine, viewing the facts in the light most favorable to the plaintiff, whether a reasonable jury could conclude that the plaintiff has shown by a preponderance of the evidence that the peer review activities did not meet the standards set forth in the Act. Patton v. St. Francis Hosp., 260 Ga. App. 202, 581 S.E.2d 551 (2003). Trial court properly granted summary judgment for a hospital in an action arising out of the refusal to reinstate a doctor’s staff privileges, finding that the hospital had immunity under the Health Care Quality Improvement Act of 1986 (HCQIA), 42 U.S.C. § 11101 et seq., because: (1) letters allowing the doctor to resume seeing patients only if the doctor complied with the doctor’s psychiatrist’s plan were not peer review action; (2) if the letters were peer review action, the doctor was afforded adequate notice and fair process; (3) the doctor failed to rebut the presumption that the peer review process was reasonable; (4) the doctor failed to rebut the presumption that the doctor was afforded adequate notice and a hearing; and (5) any violation of the hospital’s bylaws did not necessarily mean that the doctor was denied adequate notice and a hearing under the HCQIA. Taylor v. Kennestone Hosp., Inc., 266 Ga. App. 14, 596 S.E.2d 179 (2004). Medical malpractice. — If a motion for summary judgment is supported by evidence that there is no genuine issue for trial, as the medical doctor performed the entire procedure in a medically accepted and recognized manner and in so doing exercised the degree of care and skill that is generally employed by physicians under similar circumstances, it would be necessary that the plaintiff offer evidence showing that there is a genuine issue for trial. Swindell v. St. Joseph’s Hosp., 161 Ga. 9-11-56 App. 290, 291 S.E.2d 1 (1982); Bieling v. Battle, 209 Ga. App. 874, 434 S.E.2d 719 (1993). Trial court erred in denying the appellants’ motion for summary judgment on the patient’s second action for medical malpractice, breach of contract, and failure to secure informed consent as the first action was against the same defendant, it was an adjudication on the merits, and the patient had a full and fair opportunity to litigate the first action. Simon v. Gunby, 260 Ga. App. 3, 578 S.E.2d 482 (2003). Summary judgment pursuant to O.C.G.A. § 9-11-56 was properly granted to physicians in a medical malpractice action against the physicians in which the plaintiff patient claimed radiation damage to an arm that the doctors did not reveal until the expiration of the limitations period of O.C.G.A. § 9-3-71(a); however, the record revealed that the physicians had repeatedly informed the patient that such damage was one of the possible causes of the arm pain and there was no fraud found on the physicians’ part which would have extended the time period pursuant to O.C.G.A. § 9-3-96. Price v. Currie, 260 Ga. App. 526, 580 S.E.2d 299 (2003). Summary judgment was granted pursuant to O.C.G.A. § 9-11-56(c) to a hospital in an action brought by parents who alleged that the mother had received negligent pre-natal care at the hospital, which resulted in permanent injuries to her son; the obstetricians and residents who rendered care to the mother were found to be in private practice and were independent contractors who were not subject to any control over their judgments or decisions by the hospital, rather than employees of the hospital and, accordingly, there was no liability on the part of the hospital for the contractor’s actions. Anderson v. Medical Ctr., Inc., 260 Ga. App. 549, 580 S.E.2d 633 (2003). In a medical malpractice suit decided in favor of a doctor on the doctor’s motion for summary judgment, res ipsa loquitur did not apply in a malpractice suit as an unintended result did not raise an inference of negligence; it was presumed that medical or surgical services were performed in an ordinarily skillful manner. 806 Oakes v. Magat, 263 Ga. App. 165, 587 S.E.2d 150 (2003). O.C.G.A. § 31-9-6.1(c) squarely places the responsibility for obtaining consent to surgical procedures on the shoulders of the ‘‘responsible physician,’’ who is defined in O.C.G.A. § 31-9-6.1(h) as the physician who performs the procedure or the physician under whose direct orders the procedure is performed by a nonphysician; an assisting physician was not responsible for obtaining a patient’s consent for a leg-nerve surgery, and summary judgment for the doctor in a malpractice case brought by the patient was affirmed. Duke v. Bachner, 266 Ga. App. 109, 596 S.E.2d 414 (2004). Statute of repose in a medical malpractice claim ran from the date the negligent or wrongful act or omission occurred without regard to when the injury arising from the negligent act or omission occurred or was discovered; thus, a malpractice claim filed more than five years after the date on which the last negligent or wrongful act or omission attributable to the doctor and the medical center could have occurred was time barred, and summary judgment in favor of a doctor and a medical center in a patient’s malpractice claim was affirmed. Christian v. Atha, 267 Ga. App. 186, 598 S.E.2d 895 (2004). Trial court properly granted a surgeon’s summary judgment motion and held that a patient’s medical malpractice suit was barred by the two-year statute of limitations set forth in O.C.G.A. § 9-3-71(a), which began to run at the time of the alleged misdiagnosis, when a surgeon advised the patient that the patient did not have breast cancer but recommended close follow-up care; the case did not fall within the limited exception for subsequent injury cases as the patient’s symptoms worsened over time. Harrison v. Daly, 268 Ga. App. 280, 601 S.E.2d 771 (2004). In a negligence action filed by a decedent’s administrator, summary judgment was properly granted to a doctor and a clinic for the post-op treatment of the decedent as: (1) both the doctor and the clinic remained immune from suit under O.C.G.A. § 51-1-29.1; (2) the doctor’s treatment of the decedent’s complications 9-11-56 immediately following the decedent’s surgery did not change the voluntary nature of the treatment as a whole; (3) it was reasonable to expect that a physician would continue to treat a patient following surgery; and (4) the appeals court viewed the doctor’s voluntary treatment of the decedent as a whole, not divided into categories of preoperative, operative, and post-operative; moreover, because no evidence was presented that either the doctor or the clinic was a ‘‘charitable institution,’’ and O.C.G.A. § 51-1-29.1 provided no such exception, waiver of any common-law charitable immunity through the doctor’s procurement of liability insurance did not apply. Wells v. Rogers, 281 Ga. App. 473, 636 S.E.2d 171 (2006), cert. denied, 2007 Ga. LEXIS 101 (Ga. 2007). Because a catheter intentionally placed in a patient’s body was not a ‘‘foreign object’’ as contemplated by O.C.G.A. § 9-3-72, and the fact that the catheter might have been negligently placed did not alter this finding, absent evidence of a doctor’s fraud or concealment of the fraud, summary judgment in a patient’s medical malpractice suit was properly granted to a doctor and a clinic as the applicable two-year statute of limitation had expired by the time the action was filed. Pogue v. Goodman, 282 Ga. App. 385, 638 S.E.2d 824 (2006). Trial court erred in denying partial summary judgment on a patient’s medical malpractice and ordinary negligence claims, when, given evidence that the patient suffered an injury arising out of the misdiagnosis in January of 1999, when the patient was first seen by the doctor manifesting continuous symptoms of a moderate B-12 deficiency and the doctor failed to make the diagnosis and provide treatment, and the patient failed to file an action within the two years; but, because the patient’s ordinary negligence and breach of fiduciary duty claims were essentially malpractice claims, subject to the same limitations period, summary judgment as to these claims was upheld. Stafford-Fox v. Jenkins, 282 Ga. App. 667, 639 S.E.2d 610 (2006). On appeal from the grant of summary judgment in favor of a dentist in a pa- 807 Applicability to Certain Actions, Proceedings, Issues, and Defenses (Cont’d) tient’s medical malpractice action, such was upheld based on the expiration of the statute of limitation and rejection of the continuous treatment doctrine by the Supreme Court of Georgia and because the exception for a subsequent injury did not apply. Bousset v. Walker, 285 Ga. App. 102, 645 S.E.2d 593 (2007). In a medical malpractice action, because the record on appeal contained evidence creating a genuine issue of material fact as to the proximate cause of a patient’s injuries, the trial court erred in granting a hospital summary judgment; moreover, the appeals court declined to hear the hospital’s claim that the patient failed to comply with O.C.G.A. § 9-11-9.1. Renz v. Northside Hosp., Inc., 285 Ga. App. 882, 648 S.E.2d 186 (2007). Trial court erred in granting a medical clinic’s motion for summary judgment in a patient’s medical malpractice action and in finding that an affidavit provided by a patient’s expert did not sufficiently establish causation as the expert specifically explained the precautions that should have been taken by the employee administering a shot to the patient, and stated that the failure to take these precautions proximately caused the patient’s injury; moreover, given the expert’s past relevant experience as a nurse, the expert was competent to provide an opinion in the case. Allen v. Family Med. Ctr., P.C., 287 Ga. App. 522, 652 S.E.2d 173 (2007). Because a medical care provider failed to assert an available defense in the underlying action which would have absolved the provider from any liability and prevented a default judgment from entering against the provider, the trial court did not err in entering summary judgment against the provider on the provider’s claims for contribution and indemnity. Emergency Professionals of Atlanta, P.C. v. Watson, 288 Ga. App. 473, 654 S.E.2d 434 (2007), cert. denied, 2008 Ga. LEXIS 407 (Ga. 2008). In a medical malpractice action, because the undisputed evidence showed that both the personal injury claims and a 9-11-56 later-added wrongful death claim were timely filed, both in terms of O.C.G.A. § 9-3-71 and the relevant statute of repose, the doctors sued were properly denied summary judgment as to those claims. Cleaveland v. Gannon, 288 Ga. App. 875, 655 S.E.2d 662 (2007), aff ’d, 284 Ga. 376, 667 S.E.2d 366 (2008). In a couple’s medical malpractice action, because: (1) the couple failed to follow the court’s case management orders, which the couple selected and consented to; (2) the couple’s only expert was properly excluded as a rebuttal witness; and (3) the couple failed to present any evidence of causation, the trial court properly entered summary judgment against the couple. Thomas v. Peachtree Orthopaedic Clinic, P.C., 290 Ga. App. 869, 660 S.E.2d 758 (2008), cert. denied, No. S08C1373, 2008 Ga. LEXIS 915 (Ga. 2008). In a medical malpractice action, because the suing couple’s failure to faithfully engage in discovery could not be remedied by the exclusion of probative trial evidence, specifically, the testimony from the couple’s expert witness, the trial court erred in entering summary judgment against the couple. Hart v. Northside Hosp., Inc., 291 Ga. App. 208, 661 S.E.2d 576 (2008). Trial court properly granted summary judgment to an eye doctor and a corporation as even though the type of eye surgery performed on the patient made the patient more vulnerable to an eye infection and even though an eye infection caused the patient’s loss of sight, the patient was unable to show the medical malpractice element of causation since the patient did not show that anything the doctor did, or failed to do, caused the eye infection. Berrell v. Hamilton, 260 Ga. App. 892, 581 S.E.2d 398 (2003). Doctor’s liability for certifying patient ‘‘safe’’ for activity. — Trial court properly granted summary judgment to a doctor on the administrator’s wrongful death suit alleging that the doctor negligently certified the truck driver to drive a truck even though the doctor knew or should have known that the truck driver had a pre-existing heart condition as the truck driver three months later died while driving the truck which then struck the 808 decedent’s vehicle and killed the decedent; even giving the administrator the benefit of all reasonable doubt, and construing the evidence and inferences in the administrator’s favor, the doctor was entitled to summary judgment because the doctor did not have the legal authority to restrain the truck driver for the benefit of the motoring public and, thus, the doctor did not owe a duty to the decedent. Houston v. Bedgood, 263 Ga. App. 139, 588 S.E.2d 437 (2003). Apparent authority of doctor working in emergency room. — Trial court erred in granting the hospital’s motion for summary judgment on the issue of whether an emergency room doctor was an apparent employee of the hospital since the evidence failed to show that the hospital had sufficiently notified the patient that the doctor was not the hospital’s employee by allegedly posting a sign or including a paragraph in a two page document so indicating. Cooper v. Binion, 266 Ga. App. 709, 598 S.E.2d 6 (2004). Hospital’s liability for doctor’s actions. — Trial court erred in granting summary judgment to the hospital on the issue of whether the doctor was an actual employee of the hospital because evidence showed, inter alia, that the doctor was hired to perform a service rather than accomplish a task, the hospital supplied the equipment used by the doctor, the hospital retained the right to control the doctor’s hours of work, the doctor was paid by the hour, the doctor spent all working hours at the hospital, the hospital handled all the billing of patients, and the hospital paid the doctor’s malpractice insurance. Cooper v. Binion, 266 Ga. App. 709, 598 S.E.2d 6 (2004). Negligent credentialing. — Surviving spouse’s negligent credentialing suit against a hospital was properly dismissed on summary judgment as the undisputed evidence showed that the surgeon did not perform the prostatic cryosurgery negligently. The surviving spouse’s own expert witness affirmatively stated that the rectal injury, which caused the deceased spouse’s death, was not the result of the surgeon’s negligence during the cryosurgery but was a complication that could have occurred during any prostate 9-11-56 cancer surgery and in the absence of any negligence, and that the surgeon’s negligence did not occur until five weeks later, during the surgeon’s treatment of the deceased spouse following an emergency hospitalization. Ladner v. Northside Hosp., Inc., 314 Ga. App. 136, 723 S.E.2d 450 (2012). Intentional infliction of emotional distress by medical staff. — Trial court’s grant of summary judgment, pursuant to O.C.G.A. § 9-11-56(c), to a hospital was proper in an action by a patient and her husband, alleging intentional infliction of emotional distress because there was no evidence to support a finding of intent or reckless disregard by an emergency room nurse, who had unsuccessfully attempted to search through the patient’s clothing when she came in suffering a miscarriage; the fact that when the wife was home doing laundry, the intact fetus, still in the fetal sac, fell out of her pants could have been sufficient to support a finding that the nurse was negligent, but not more. Roddy v. Tanner Med. Ctr., Inc., 262 Ga. App. 202, 585 S.E.2d 175 (2003). Legal malpractice. — Trial court properly granted partial summary judgment to an attorney, the law firm partners, and the law firm on a client’s breach of fiduciary duty and fraud claims as the claims were merely duplicative of the client’s legal malpractice claim. Furthermore, even if the claims were not duplicative, the client’s evidence that the attorney charged a grossly excessive fee, charged the client for estate planning software that the attorney retained for general use, failed to inform the client about the attorney’s concerns, and misrepresented the attorney’s ability would not have survived summary judgment. Griffin v. Fowler, 260 Ga. App. 443, 579 S.E.2d 848 (2003). Trial court erred in granting summary judgment to the closing attorney on the alleged client’s claims for legal malpractice and fraud as genuine issues about whether an attorney-client relationship existed and whether misrepresentations had been made precluded summary judgment, but the trial court properly granted summary judgment to the closing attorney on the alleged client’s Georgia Racke- 809 Applicability to Certain Actions, Proceedings, Issues, and Defenses (Cont’d) teer Influenced and Corrupt Organizations Act, O.C.G.A. § 16-14-1 et seq., claim because the alleged client did not show the required ‘‘pattern of racketeering’’ activity. Mays v. Askin, 262 Ga. App. 417, 585 S.E.2d 735 (2003). Because the evidence showed that an attorney continued to represent a brother and sister as co-executors of an estate after conflicts of interest arose, that the attorney used information obtained from the brother to bring a collection action against the sister, and that the attorney retained another attorney to investigate more of the sister’s debts, material issues of fact existed that precluded summary judgment on the sister’s claims against the attorney for legal malpractice, breach of fiduciary duty, fraud, and conspiracy. Traub v. Washington, 264 Ga. App. 541, 591 S.E.2d 382 (2003). Trial court properly granted summary judgment to an attorney after a client filed a legal malpractice claim against the attorney more than four years and 11 months after the attorney withdrew from representing the client in a bankruptcy matter as no genuine issue of material fact existed but that the client’s claim was barred by the four-year limitations period and, thus, any act of malpractice on the attorney’s part giving rise to the claim had to have occurred more than four years before the client filed the client’s claim. Shores v. Troglin, 260 Ga. App. 696, 580 S.E.2d 659 (2003). Attorneys’ summary judgment motion in a legal malpractice case was properly denied as there was evidence that a nurse in the injured party’s underlying negligence case deviated from the standard of care, and that but for the attorneys’ negligence in dismissing the negligence case, intending to refile the case later, despite the passing of the time period limited by the statute of repose, the injured party would have won the underlying negligence case. Blackwell v. Potts, 266 Ga. App. 702, 598 S.E.2d 1 (2004). In a legal malpractice action, because the attorneys’ failure to exercise due dili- 9-11-56 gence in procuring service of process constituted professional negligence, resulting in a loss of their clients’ rights to pursue a claim against their own UM carrier, and conflicting evidence was presented as to the issue of whether the clients’ rights under O.C.G.A. § 9-2-61 to pursue a claim against their own uninsured motorist insurance carrier were impeded by their attorneys’ actions, summary judgment was reversed. Butler v. Gary, Williams, Parenti, Finney, Lewis, McManus, Watson & Sperando, P.L., 280 Ga. App. 207, 633 S.E.2d 614 (2006). While an attorney was shielded from liability as to the issue of whether a breach occurred as to the duty of care owed to the clients by failing to verify the complaint pursuant to O.C.G.A. § 9-11-11.1(b), opting instead to dismiss the complaint and refile the complaint as a renewal action, summary judgment as to the issues of harm to the clients and a breach of the duty of ordinary care as a result of the attorney’s failure to advise was reversed. Chatham Orthopaedic Surgery Ctr., LLC v. White, 283 Ga. App. 10, 640 S.E.2d 633 (2006). Despite an attorney’s claim that privity of contract with a decedent’s widow was lacking, because the evidence supported a finding that the widow was an intended beneficiary of the decedent’s will, the attorney owed the widow a similar duty to the one owed to the decedent, as the attorney’s client, resulting in the attorney’s liability upon a breach of that duty, making partial summary judgment in the widow’s favor proper. Young v. Williams, 285 Ga. App. 208, 645 S.E.2d 624 (2007). In a legal malpractice action, despite the fact that the trial court held that the client’s failure to prove proximate causation supported an order granting summary judgment to the attorney and that attorney’s law firm, the appeals court nevertheless held that summary judgment was properly granted to the attorney, under the ‘‘right for any reason’’ rule, as the suit was untimely filed. Moreover, the client’s argument that the attorney could have amended the suit to add a damages claim up until the time of a pre-trial order, and that this later failure to act should be considered the triggering date for the mal- 810 practice action, was unavailing, as the attorney’s failure to amend constituted a failure to avoid the effect of the earlier breach and a failure to mitigate damages, but was not a failure inflicting a new harm, thus triggering a new limitations period. Duke Galish, LLC v. Arnall Golden Gregory, LLP, 288 Ga. App. 75, 653 S.E.2d 791 (2007), cert. denied, 2008 Ga. LEXIS 212 (Ga. 2008). Attorney contract claim reversed. — Trial court’s denial of a client’s summary judgment motion was reversed as the oral contract between an attorney and the client was unenforceable in that: (1) there was no definition of what was to be considered the ultimate or logical conclusion of any given case assigned to the attorney, nor were there standards for determining if the attorney ‘‘didn’t do the job’’; (2) there was no stated duration of the agreement, and the public policy of Georgia was clear that, absent a definite term of employment, the contract was terminable at will under O.C.G.A. § 34-7-1; and (3) the attorney’s claimed damages, the attorney’s hourly rate times the number of hours it would have taken the attorney to bring each case to its ultimate or logical conclusion, were speculative and not objectively ascertainable from the oral contract. Furthermore, as to an attorney’s breach of contract claim, the trial court failed to consider the public policy issues involved in the attorney-client relationship and should have granted summary judgment to the client; in Georgia, because of the fiduciary relationship between an attorney and a client, the client had the absolute right to discharge the attorney and terminate the relationship at any time, even without cause, and the client’s freedom in ending the attorney-client relationship without financial penalty was favored over the attorney’s right to enforce the damages provision in the attorney’s retainer contract because requiring a client to pay damages for terminating the client’s attorney’s employment contract eviscerated the client’s absolute right to terminate. Ga. Farm Bureau Mut. Ins. Co. v. Croley, 263 Ga. App. 659, 588 S.E.2d 840 (2003). Ratification. — When a company sued the company’s accountants regarding the 9-11-56 accountants’ participation in a sale of the company’s assets, summary judgment should have been granted in favor of the accountants because the company ratified the actions of the company’s employee who had apparent authority to conduct the sale when the company retained the proceeds of the sale and accepted a return of the assets sold in settlement of another lawsuit. R.W. Holdco, Inc. v. Johnson, 267 Ga. App. 859, 601 S.E.2d 177 (2004). Summary judgment was properly granted to an attorney in a former criminal client’s legal malpractice action because the former client failed to establish any grounds to support the client’s allegations of ineffective assistance and was merely relitigating the client’s denied habeas petitions on which the attorney had represented the client. Cornwell v. Kirwan, 270 Ga. App. 147, 606 S.E.2d 1 (2004). Denial of summary judgment affirmed. — Trial court’s denial of a client’s summary judgment motion was affirmed as to an attorney’s conversion claim because the issue of the attorney’s consent to the removal of files from the attorney’s office was not clear-cut. Ga. Farm Bureau Mut. Ins. Co. v. Croley, 263 Ga. App. 659, 588 S.E.2d 840 (2003). Negligence. — Even though the facts in the case are uncontradicted and uncontroverted, if the facts are such that there is room for a difference of opinion between reasonable persons as to whether or not negligence should be inferred, the right to draw the inference is peculiarly within the exclusive province of the jury. Yeager v. Jacobs, 111 Ga. App. 358, 141 S.E.2d 837 (1965) (decided under former Ga. L. 1959, p. 234, § 1 et seq.). It is for a jury to decide in a negligence case whether the alleged acts constituted negligence and whether or not the acts were the proximate cause of the plaintiff ’s injuries, and the mere fact that it is shown without dispute that the plaintiff was guilty of certain acts that could be characterized as negligent would not authorize a grant of summary judgment for the defendant if reasonable minds could differ as to whether the plaintiff ’s acts amounted to negligence. Yeager v. Jacobs, 111 Ga. App. 358, 141 S.E.2d 837 (1965) (decided under Ga. L. 1959, p. 234, § 1 et seq.). 811 Applicability to Certain Actions, Proceedings, Issues, and Defenses (Cont’d) Questions necessitating a decision as to whether the facts show that lack of ordinary care for one’s own safety, which will bar recovery, or only that comparative negligence, which will reduce it, are generally for the jury. Stukes v. Trowell, 119 Ga. App. 651, 168 S.E.2d 616 (1969). In a negligence case, it must be plainly and palpably shown that the defendants in no way contributed to the proximate cause of damages incurred in order for the trial court to sustain a motion for summary judgment in their favor. Chastain v. Atlanta Gas Light Co., 122 Ga. App. 90, 176 S.E.2d 487 (1970). Issues of negligence, including the related issues of assumption of risk, lack of ordinary care for one’s own safety, lack of ordinary care in avoiding the consequences of another’s negligence, and comparative negligence, are ordinarily not susceptible of summary adjudication, whether for or against the plaintiff or the defendant, but must be resolved by trial. Reed v. Batson-Cook Co., 122 Ga. App. 803, 178 S.E.2d 728 (1970); Shuman Supply of Savannah, Inc. v. Skinner, 128 Ga. App. 431, 197 S.E.2d 152 (1973); North v. Toco Hills, Inc., 160 Ga. App. 116, 286 S.E.2d 346 (1981); Fort v. Boone, 166 Ga. App. 290, 304 S.E.2d 465 (1983). Negligence, diligence, and contributory negligence are not ordinarily susceptible of adjudication on summary judgment. Lockhart v. Walker, 124 Ga. App. 241, 183 S.E.2d 503 (1971). Party who moves for summary judgment in a case premised on negligence has a considerable burden, and if the defendant is the movant, sometimes summary judgment may not be obtained even though a directed verdict could be secured at trial. Turner v. Noe, 127 Ga. App. 870, 195 S.E.2d 463 (1973). Questions involving negligence, and especially those involving whether, under the circumstances, the defendant exercised ordinary care, are properly for the jury. Lockhart v. Beaird, 128 Ga. App. 7, 195 S.E.2d 292 (1973). Questions of negligence as to cause and 9-11-56 proximate cause, and as to what negligence, and whose negligence, constitutes proximate cause of damages in tort cases are generally solely for the jury, except in plain and palpable cases. Summers v. Milcon Corp., 134 Ga. App. 182, 213 S.E.2d 515 (1975). Summary judgment will not usually be as feasible in negligence cases, when the standard of the reasonable person must be applied to conflicting testimony, as it is in other kinds of litigation, since even if there is no dispute as to the facts, it is usually for the jury to say whether the conduct in question met the standard of the reasonable person. Epps Air Serv., Inc. v. DeKalb County, 147 Ga. App. 195, 248 S.E.2d 300 (1978); Jones v. Crown Constr. Co., 152 Ga. App. 578, 263 S.E.2d 460 (1979). Unless no other conclusion is permissible, questions of negligence are matters for jury resolution and are not ordinarily susceptible to summary adjudication. Epps Air Serv., Inc. v. DeKalb County, 147 Ga. App. 195, 248 S.E.2d 300 (1978). Questions of negligence and proximate cause are peculiarly questions for the jury except in clear, plain, palpable, and undisputed cases. Only in the rare case in which there is an admission of liability or an indisputable fact situation that clearly establishes liability should summary judgment be granted. Lozynsky v. Hutchinson, 159 Ga. App. 715, 285 S.E.2d 70 (1981). Negligence in the workplace. — In an action against the issuer of a property loss policy covering a boiler involved in an explosion, the defenses that the death of the decedent was the result of the negligence of others and that the decedent and the decedent’s employer knew of the defective condition in the subject boiler and did not rely on inspections, did not require affirmative pleading and involved questions of fact, precluding a grant of partial summary judgment. Cleveland v. American Motorists Ins. Co., 163 Ga. App. 748, 295 S.E.2d 190 (1982). If the facts conclusively show by plain, palpable, and undisputed evidence that the defendant was not at fault, including a case involving contentions of negligence, contributory negligence, or exercise of or- 812 dinary care for one’s own safety, the case properly may be resolved as a matter of law through the vehicle of summary judgment. Fort v. Boone, 166 Ga. App. 290, 304 S.E.2d 465 (1983). Issues of negligence, assumption of risk, contributory negligence, and comparative negligence are not susceptible of summary adjudication except in plain, palpable, and indisputable cases. Malvarez v. Georgia Power Co., 166 Ga. App. 498, 304 S.E.2d 542 (1983). When issues of negligence, diligence, and contributory negligence are involved, it is necessary that such issues be resolved by a jury rather than by summary adjudication. Georgia Power Co. v. Knighton, 169 Ga. App. 416, 312 S.E.2d 872 (1984). In an automotive negligence action, because the materials relied upon by the defendant pierced the plaintiff ’s pleadings, the plaintiff ’s failure to set forth specific facts showing there was a genuine issue for trial warranted an award of summary judgment for the defendant. Butler v. Huckabee, 209 Ga. App. 761, 434 S.E.2d 576 (1993). In a negligence action, questions of proximate cause are peculiarly reserved for jury determination except in clear, plain, and undisputed cases. Coweta County v. Adams, 221 Ga. App. 868, 473 S.E.2d 558 (1996). Because the plaintiff failed to present any evidence that raised a question of fact as to whether the defendant was negligent, the plaintiff ’s contentions regarding what might have happened disappeared in light of the uncontradicted witness testimony as to what did happen, and the trial court correctly granted summary judgment to the defendant. Etheredge v. Kersey, 236 Ga. App. 243, 510 S.E.2d 544 (1998). Because the plaintiff in a negligence case failed to make a showing that the defendant’s negligence caused the plaintiff ’s injuries, but could only speculate that a greasy substance caused the plaintiff to slip and fall, summary judgment was properly awarded to the defendant. Christopher v. Donna’s Country Store, 236 Ga. App. 219, 511 S.E.2d 579 (1999). Resolution of an employer’s obligation to indemnify a manufacturer with regard 9-11-56 to a claim brought by an employee did not turn on whether the employer was negligent but instead hinged on whether the manufacturer was solely negligent, and since the manufacturer submitted evidence creating a fact issue as to whether the employee failed to exercise ordinary care for the employee’s own safety, the trial court erred when the court granted partial summary judgment to the employer on the manufacturer’s contractual indemnification claim; the manufacturer failed to show that the employer did not adequately train the employee, so summary judgment as to that issue was affirmed, and the trial court did not err in denying partial summary judgment to the employer on the manufacturer’s claim for a defense. Nat’l Gypsum v. Ploof Carriers Corp., 266 Ga. App. 565, 597 S.E.2d 597 (2004). Even though later damage to a gas line left exposed in a home was an intervening act that led to a fatal gas fueled fire in the home, the liability of a corporation for the negligence of the corporation’s employees in leaving the gas line exposed was still allowed if the employees could have reasonably anticipated or foreseen the intervening act as a consequence of the original negligence; as the evidence would have allowed a jury to find that the natural and probable consequence of leaving a line exposed was that the line would have been damaged, the issue of proximate cause should have been decided by a jury, and summary judgment in favor of the corporation in a wrongful death action brought by the decedent’s children was reversed. Beasley v. A Better Gas Co., 269 Ga. App. 426, 604 S.E.2d 202 (2004). Trial court properly granted summary judgment against an employee, in a third-party action against two contractors and a consultant, because: (1) the employee failed to present sufficient evidence that the alleged negligence by these third parties caused excessive clogging of the conveyor as the employee was injured and forced the employer to operate a conveyor without its cover; and (2) even if the employee established a factual issue as to whether these third parties were negligent in failing to install an emergency pull-cord on the conveyor or in failing to 813 Applicability to Certain Actions, Proceedings, Issues, and Defenses (Cont’d) put a second light switch in the tunnel, the employee was still required to show that such was a proximate cause of the injury, which the employee failed to do; moreover, none of the third parties could have reasonably anticipated or foreseen that the employer would negligently seal off the access where the tunnel light switch was located and disregard the manufacturer’s warnings and OSHA regulations by running the conveyor with a section of the cover removed. Cieplinski v. Caldwell Elec. Contrs., Inc., 280 Ga. App. 267, 633 S.E.2d 646 (2006). Because any duty a construction site owner and various contractors had to warn a construction worker of the buried electrical lines was satisfied by notice to that worker’s supervisor, who admitted to notice and knowledge of the buried lines, the trial court properly entered summary judgment against the worker in a negligence action filed against them as no other duties existed; moreover, the worker’s denial as to being informed by the supervisor of the existence and location of the buried lines in the area worked on was neither relevant nor material to the issue of any duty owed to the worker, and was not a genuine issue of material fact that would have precluded summary judgment. McKinney v. Regents of the Univ. Sys. of Ga., 284 Ga. App. 250, 643 S.E.2d 736 (2007), cert. denied, 2007 Ga. LEXIS 497 (Ga. 2007). Negligence from sporting event. — Trial court properly granted summary judgment to a professional baseball player and the player’s team, and against a baseball fan, in the latter’s negligence suit as the fan voluntarily assumed the risk of injury from an errantly thrown baseball, and thus failed to come forth with specific evidence giving rise to a triable issue of fact. Dalton v. Jones, 260 Ga. App. 791, 581 S.E.2d 360 (2003). Contractor’s negligence. — Trial court properly granted partial summary judgment to a contractor, the contractor’s business, and a subcontractor under O.C.G.A. § 9-11-56(c) because: (1) a party 9-11-56 was injured while attempting to put out a fire allegedly caused by the contractor’s negligence, injuring the party’s leg and foot; (2) despite being prescribed a removable cast and crutches, the injured party walked to the bathroom without the cast and crutches and fell, injuring the party’s shoulder; (3) the treating physician testified that if the injured party was not experiencing pain, the injured party could walk short distances without the cast and crutches, however, the injured party had been experiencing pain; and (4) the injured party’s own intervening act broke the chain of causation for the shoulder injury. Hynes v. Cagle, 264 Ga. App. 367, 590 S.E.2d 770 (2003). Summary judgment is appropriate in negligence cases when, viewing all the facts and reasonable inferences from those facts in a light most favorable to the plaintiff, the evidence does not create a triable issue on the question of proximate cause; although the question of proximate cause is ordinarily for the jury to decide, plain and indisputable cases may be decided by the court as a matter of law and the inquiry in such cases is whether the causal connection between the defendant’s conduct and the injury is too remote for the law to countenance a recovery. Brown v. All-Tech Inv. Group, Inc., 265 Ga. App. 889, 595 S.E.2d 517 (2004). Negligence in auto accident. — Summary judgment was properly entered for a trucker in a third-party negligence action brought by a driver who turned into a truck to avoid a head-on collision while the driver was attempting a pass that was illegal under O.C.G.A. § 40-6-42; there was nothing to show that the trucker knew, or in the exercise of ordinary care should have known, that the driver was likely to attempt an illegal pass and the trucker was complying with the traffic regulations at the time of the accident. Rios v. Norsworthy, 266 Ga. App. 469, 597 S.E.2d 421 (2004). Trial court correctly rejected a res ipsa loquitur claim brought against a car owner by a passenger injured in an accident that occurred when the car suffered a sudden steering malfunction since there was evidence that negligent driving may have caused the accident and since the 814 malfunction could have occurred for reasons other than negligent maintenance or repair; however, the trial court erred in denying the car owner’s summary judgment motion on the injured passenger’s negligence claims since the car owner showed that the owner diligently repaired and maintained the car for over two years until the accident here, since the injured person’s evidence did not support a reasonable inference that the malfunction resulted from negligent repair or maintenance and since negligence by the owner could not have been reasonably inferred solely because the owner had repaired and maintained a car that suffered a malfunction. Ken Thomas of Ga., Inc. v. Halim, 266 Ga. App. 570, 597 S.E.2d 615 (2004). Trial court properly granted summary judgment to a vehicle driver on the vehicle passenger’s negligence action against the driver and a second driver after the second driver pulled into the intersection and caused a collision with the vehicle driven by the first driver; the passenger could not show that the first driver breached any duty owed to the passenger or that the first driver’s actions were the proximate cause of the passenger’s injuries. McQuaig v. Tarrant, 269 Ga. App. 236, 603 S.E.2d 751 (2004). Trial court properly denied a driver’s summary judgment motion in a police officer’s personal injury action against the driver as the officer’s suit was not barred by the Fireman’s Rule given that the alleged negligence that occurred to cause the accident which injured the officer had nothing to do with the officer’s presence at the scene. Davis v. Pinson, 279 Ga. App. 606, 631 S.E.2d 805 (2006). Conclusion of the expert’s testimony as to the cause of an auto accident was speculative and could not support summary judgment as the credibility of the expert and the weight to be given to the opinion were matters to be addressed by the jury; moreover, if the expert’s opinion was based upon inadequate knowledge, this fact did not mandate the exclusion of the opinion but, rather, presented a jury question as to the weight which should be assigned to the opinion. Layfield v. DOT, 280 Ga. 848, 632 S.E.2d 135 (2006). In a negligence action stemming from 9-11-56 an auto accident between a driver and a farmer’s cow, the trial court properly granted summary judgment on the driver’s claim for consequential damages, which was sought for a ‘‘ruined vacation,’’ as the driver failed to show any evidence of a physical injury which was a necessary element on a claim premised on ordinary negligence. Hoeflick v. Bradley, 282 Ga. App. 123, 637 S.E.2d 832 (2006). In a personal injury action arising from a child’s injuries as a pedestrian, because conflicting testimony was presented to the trial court as to the issue of a driver’s negligence as well as a parent’s comparative negligence and apportionment of fault, if any, the trial court properly denied the driver’s motion for summary judgment. Sutton v. Justiss, 290 Ga. App. 565, 659 S.E.2d 903 (2008). In a negligence action arising from a vehicular accident, the trial court did not err in denying summary judgment to the driver of the other car and its owner, because the injured party’s testimony supplied a reasonable basis to conclude that the injuries were more likely than not the result of the impact of the collision with the car’s driver. Wilson v. Allen, 272 Ga. App. 172, 612 S.E.2d 39 (2005). In a personal injury action against a vehicle’s owner filed by an injured passenger based on the negligence of the vehicle’s driver, the trial court properly granted summary judgment to the owner, finding no liability under the family purpose doctrine because: (1) the driver was not a member of the owner’s immediate household; and (2) the passenger failed to present competent evidence in response to the owner’s summary judgment motion as neither hearsay or evidence of conjecture and speculation was sufficient. Patterson v. Lopez, 279 Ga. App. 840, 632 S.E.2d 736 (2006). In a personal injury action filed by a husband and wife against a driver and that driver’s employer, a negligent entrustment claim asserted against the employer was properly disposed of on summary judgment, but because the motion did not include both their negligent hiring and respondeat superior claims, and the husband and wife were not given full and fair notice that those claims were to be 815 Applicability to Certain Actions, Proceedings, Issues, and Defenses (Cont’d) included in the motion, those claims also survived. Parker v. Silviano, 284 Ga. App. 278, 643 S.E.2d 819 (2007). Gross negligence. — Summary judgment was properly entered for the storage companies on an owner’s gross negligence claim because: (1) assuming the owner’s allegations were true, the storage companies’ actions would only be ordinary negligence; (2) the storage companies owed no duty to the owner; and (3) the storage companies were not liable under Georgia’s Good Samaritan Doctrine, as the companies did not assume a duty to conduct a vehicle count in the companies’ operations manual, the owner was not aware of the manual until after the owner filed suit, and were the storage companies required to conduct a vehicle count, their failure to do so would not have increased the risk of theft as daily counts could only detect that a theft might have occurred after the theft had already occurred. Liberty v. Storage Trust Props., L.P., 267 Ga. App. 905, 600 S.E.2d 841 (2004). Negligence by independent contractor. — Although exculpatory clauses signed by a pilot and a safety pilot who flew an aircraft company’s plane and engaged in simulated aerial combat were not against public policy under O.C.G.A. § 1-3-7, they were not enforceable if the company was found to have been grossly negligent or to have engaged in willful misconduct, which was an issue to be resolved by the jury; additionally, a jury issue remained as to whether one of the pilots was an independent contractor for purposes of the company’s liability under O.C.G.A. § 51-2-5(5), and, accordingly, a grant of summary judgment pursuant to O.C.G.A. § 9-11-56 to the company was error. McFann v. Sky Warriors, Inc., 268 Ga. App. 750, 603 S.E.2d 7 (2004). To establish a negligence claim, a plaintiff must come forward with specific facts establishing the elements of negligence as to each defendant, including proximate causation, and may not rest upon generalized allegations. Summary judgment was properly granted to a construction 9-11-56 company and an architectural firm in an action alleging construction work near the intensive care unit where a patient was being treated stirred up a fatal fungus that caused the patient’s death because: (1) it was not established that the construction company performed the work; (2) no medical evidence supported a finding that any alleged construction work was the proximate cause of the transmission of the fungus; (3) the architectural firm was not responsible for deciding when or how the work would be performed; and (4) the architectural firm was not responsible for the hospital’s decisions regarding patient treatment, treatment locations, or timing of treatment. Piedmont Hosp., Inc. v. Reddick, 267 Ga. App. 68, 599 S.E.2d 20 (2004). Negligence by a restaurant. — In a case brought by an injured person against a restaurant seeking damages arising from the injured person’s slip and fall in a restroom, summary judgment for the restaurant was reversed; the restaurant failed to show that the restaurant lacked superior knowledge of the water condition in the restroom because the restaurant knew that a toilet in an adjacent restroom had overflown onto the floor, a restaurant employee had pushed water from the adjoining restroom into the restroom at issue, the restaurant was notified by the injured person’s sister that there was water everywhere, the sister’s warning to the injured person stopped short of expressly extending to the inside of the restroom, and there was no warning cone placed at either the door of or inside the restroom in question. Belcher v. Ky. Fried Chicken Corp., 266 Ga. App. 556, 597 S.E.2d 604 (2004). Summary judgment, pursuant to O.C.G.A. § 9-11-56(c), was properly granted to a restaurant by a trial court in an action by a restaurant patron, alleging emotional distress when the patron discovered two blood spots on the french fry container, fearing that the patron would contract HIV or hepatitis, because the patron failed to provide evidence of more than the patron’s ‘‘fear’’ of exposure to the diseases; accordingly, the patron’s claims for negligence, negligence per se, and breach of the implied warranty of mer- 816 chantability, under O.C.G.A. §§ 11-2-314 and 51-1-23, failed due to the patron’s failure to meet the damages requirement. Wilson v. J & L Melton, Inc., 270 Ga. App. 1, 606 S.E.2d 47 (2004). Administrative errors as negligent act. — When a retired police officer, to whom a city paid more retirement benefits than the officer was entitled, sued the city for negligence when the city corrected the error, the city was entitled to summary judgment because the city had no authority to pay the officer more retirement benefits than were provided in the officer’s retirement plan, and the officer’s alleged ‘‘early retirement,’’ based on a city clerk’s representation that the officer would receive the higher benefit amount the officer was erroneously paid was not an injury for purposes of a negligence cause of action. Dodd v. City of Gainesville, 268 Ga. App. 43, 601 S.E.2d 352 (2004). Assumption of risks. — Summary judgment in favor of a skate center was affirmed in a claim brought by a skater who was injured when another skater collided with the skater on an ice rink; it was found that the skater assumed the risks of ice skating, which, by the skater’s own admissions, were known to the skater. Fowler v. Alpharetta Family Skate Ctr., LLC, 268 Ga. App. 329, 601 S.E.2d 818 (2004). Negligence by railroad. — Appellate court erred in concluding that the trial court’s denial of summary judgment to the town and railway on the estate representative’s claim that they failed to keep a railroad right-of-way free of visual obstructions caused by overgrown vegetation should be reversed; genuine issues of material fact remained with respect to two separate, independent duties that they may have owed the decedent, whose tractor-trailer was struck by a train as the decedent drove the tractor-trailer across the town’s railroad tracks, with one duty arising under the common law and one duty arising under O.C.G.A. § 32-6-51 if there was an absence of any governmental authorization that allegedly obstructed decedent’s view. Fortner v. Town of Register, 278 Ga. 625, 604 S.E.2d 175 (2004). Trial court erroneously denied summary judgment pursuant to O.C.G.A. 9-11-56 § 9-11-56(c) to a railroad in a negligence action by an injured car driver, whose car was hit in the rear by a drunk driver, propelling the driver’s vehicle forward into a train, as the injured car driver was unable to establish proximate cause between the accident and the negligence of the railroad in maintaining the crossing; whether the reflectorized crossbuck was at the wrong height or not was irrelevant as the drunk driver’s intervening act broke the chain of causation. CSX Transp., Inc. v. Deen, 269 Ga. App. 641, 605 S.E.2d 50 (2004). Simple negligence by medical professionals. — While the trial court erred in granting summary judgment against a patient in a medical malpractice action based on a failure to attach an expert affidavit pursuant to O.C.G.A. § 9-11-9.1 because the complaint could be construed as alleging claims of ordinary negligence, to the extent the complaint could be read to allege professional malpractice claims, summary judgment was proper; moreover, there were instances in which actions performed by a professional were nevertheless not professional acts constituting professional malpractice, but, rather, were acts of simple negligence which would not require proof by expert evidence. Brown v. Tift County Hosp. Auth., 280 Ga. App. 847, 635 S.E.2d 184 (2006). Farmer’s negligence. — In a negligence action, summary judgment entered against a driver on a property damages claim was reversed, based on the collateral source rule, defendant farmer’s failure to prove the existence of a subrogation agreement, and the issue of the farmer’s liability to the driver, if any, was a jury question. Hoeflick v. Bradley, 282 Ga. App. 123, 637 S.E.2d 832 (2006). Negligence of D.O.T. — Because alternative grounds in a negligence action arising out of the construction and resurfacing of a road, specifically, whether competent evidence showed that there were any defects in the roadway and whether the Department of Transportation’s acceptance of the paving project exonerated the contractor, presented questions of fact for a jury to decide, the Supreme Court of Georgia’s reversal of an order granting summary judgment to the Department 817 Applicability to Certain Actions, Proceedings, Issues, and Defenses (Cont’d) and the contractor was adopted. Layfield v. DOT, 283 Ga. App. 151, 640 S.E.2d 618 (2006). Trial court’s summary judgment order in a negligence suit was properly entered against a couple, and in favor of a parent, as: (1) the family purpose doctrine did not apply to the couple’s lawsuit; (2) the parent’s child was not a member of the parent’s household; and (3) upon a review of the record, after the parent came forward with sufficient evidence to support the motion, the couple as the non-moving party failed to come forward with evidence in opposition to the motion. Hicks v. Newman, 283 Ga. App. 352, 641 S.E.2d 589 (2007). Because the undisputed facts presented before the trial court showed that the insurer of the leased premises owed no duty to those who leased the premises, and did not undertake any duty itself or through the insurer’s claims adjuster, the trial court erred in denying the insurer’s summary judgment motion on the lessees’ negligence claim filed against the lessee. GuideOne Mut. Ins. Co. v. Hunter, 286 Ga. App. 852, 650 S.E.2d 424 (2007). Negligence based on breach of duty. — In a lessee’s negligence action against a lessor, because questions of fact remained regarding the lessor’s breach of a duty owed to the lessee in reporting the recovery of a previously stolen rental trailer, and as to whether a breach of that duty proximately caused the lessee to become arrested for being in possession of stolen property and remained detained for a lengthy period of time, those issues could not be resolved as a matter of law; thus, an order granting the lessor summary judgment had to be reversed. Halilovic v. Penske Truck Leasing, 287 Ga. App. 215, 651 S.E.2d 160 (2007). Negligence by court clerk. — Because a litigant could not utilize a theory known as ‘‘outsider reverse veil-piercing’’ to support a claim of negligence against a superior court clerk to satisfy a judgment owed to that litigant by a third party, and because the litigant failed to present any 9-11-56 other viable proximate cause argument, the clerk was entitled to complete summary judgment as to the issue. Lollis v. Turner, 288 Ga. App. 419, 654 S.E.2d 229 (2007). Negligence by bus accident. — In a negligence action between an injured bus passenger and a bus company, because the passenger failed to present evidence regarding the cause of the injuries the passenger sustained while walking in a field after disembarking from the bus after the bus had pulled over, and because the cause remained a matter of pure speculation or conjecture, the trial court had a duty to grant summary judgment to the bus company. Greyhound Lines, Inc. v. Williams, 290 Ga. App. 450, 659 S.E.2d 867 (2008). Negligence in felling tree. — In a civil action for damages caused by felling of a tree under the doctrine of respondeat superior, the trial court erroneously denied the homeowner’s motion for summary judgment as an independent contractor was hired to fell the tree and the homeowner had no control over the contractor’s actions, and the act of felling the tree was not wrongful in itself; moreover, the homeowner’s single suggestion or comment that the contractor could proceed with felling the tree as an entire unit did not necessarily have to be followed and did not create liability on the homeowner’s part, but was simply confirming the freedom of the contractor to fell the tree as that contractor deemed appropriate. Whatley v. Sharma, 291 Ga. App. 228, 661 S.E.2d 590 (2008). Good Samaritan law and negligence action. — In a negligence action filed by the parents on behalf of their injured son, because jury questions remained as to whether a doctor had to provide immediate ‘‘emergency care at the scene of an accident or emergency’’ to the son within the meaning of the Good Samaritan statute, O.C.G.A. § 51-1-29, as well as the employer-hospital’s immunity from any vicarious liability, summary judgment was erroneously entered against the parents and in favor of both the doctor and the hospital. Gilley v. Hudson, 283 Ga. App. 878, 642 S.E.2d 898 (2007). 818 Premises liability to licensee. — Trial court properly entered summary judgment for a radio station in an injured party’s negligence action as the injured party was a licensee and the station did not wilfully or wantonly injure the injured party by maintaining in a perfectly level condition the floor upon which the injured party fell. Howard v. Gram Corp., 268 Ga. App. 466, 602 S.E.2d 241 (2004). Liability for hunter’s death who was licensee on property. — Premises owner and its operator were properly granted summary judgment in an action filed against them by a decedent’s administrator, as the decedent, who was granted permission to hunt on the property without a permit, was not shown to be anything other than a licensee, no breach of any duty owed to the decedent as a licensee was presented, and an intervening illegal act by a third party was the proximate cause of the decedent’s death; moreover, because the evidence showed that there had never been an accidental shooting of one hunter by another on the premises, no basis existed for holding that the owners or operator should have foreseen that a third party would come onto the property and illegally shoot at a target which the third party could not identify. Hadden v. ARE Props., LLC, 280 Ga. App. 314, 633 S.E.2d 667 (2006). Premises liability to lessee. — In a wrongful death action filed by a decedent-lessee’s administrator in which the decedent was killed when crossing a public highway that the lessor did not control, the lessor was properly granted summary judgment as the administrator failed to show that the lessor was negligent per se or that the lessor breached either a common law or private duty owed to the lessee. Walton v. UCC X, Inc., 282 Ga. App. 847, 640 S.E.2d 325 (2006). Trial court properly granted summary judgment to the homeowners, in a personal injury action filed by a caretaker who worked in the home, as the caretaker’s equal knowledge of the improper construction of the stairs in the home barred recovery, despite the fact that the construction violated the applicable building code; moreover, the caretaker’s claim was not saved by an admission of contributory 9-11-56 negligence. Argo v. Chitwood, 282 Ga. App. 156, 637 S.E.2d 865 (2006). In a premises liability action arising from a slip and fall on ice by an injured lessee, because jury issues existed as to whether the party exercised the requisite care, and as to the premises owner’s knowledge of the hazard, the trial court erred in granting summary judgment to the owner and an insurer and in reasoning that the lessee failed to exercise due care. Little v. Alliance Fire Prot., Inc., 291 Ga. App. 116, 661 S.E.2d 173 (2008). Appraisers were properly granted summary judgment on the buyers’ professional negligence claim, alleging that the appraisers grossly over-inflated the value of the subject property, since the appraisers were not manifestly aware of the use to which the information was to be put and did not intend that the information be so used; despite the fact that the mortgagees were listed among the class of persons to whom the report could have been distributed, the appraisers were clearly unaware that one occupying such status would rely on the appraisal in purchasing the property. Martha H. West Trust v. Mkt. Value of Atlanta, Inc., 262 Ga. App. 90, 584 S.E.2d 688 (2003). Negligent infliction of emotional distress. — Trial court properly entered summary judgment under O.C.G.A. § 9-11-56 for the owner of a truck and the truck owner’s employee in a train engineer’s suit for the negligent infliction of emotional distress arising out of an accident between a train and a truck as the engineer was not physically injured in the accident, and the engineer did not have a property interest injury resulting in a pecuniary loss arising out of the engineer’s inability to continue working as the engineer was an at-will employee; the employee’s argument that the zone of danger rule should be adopted in negligent infliction of emotional distress actions was rejected. Shores v. Modern Transp. Servs., 262 Ga. App. 293, 585 S.E.2d 664 (2003). Because an injured party alleged a physical impact and physical injuries, but did not claim that these injuries caused the party mental suffering or emotional distress, the party’s mental distress claim was barred by Georgia’s impact rule; 819 Applicability to Certain Actions, Proceedings, Issues, and Defenses (Cont’d) hence, the trial court erred in denying summary judgment to the driver of the other car involved in the accident and the owner of the car. Wilson v. Allen, 272 Ga. App. 172, 612 S.E.2d 39 (2005). Trespass. — Summary judgment was properly entered for a realtor as to a landowner’s trespass claim; the landowner never determined that the offending silt fence was actually on the landowner’s property, and the realtor testified that the fence was located on a public right-of-way. Sorrow v. Hadaway, 269 Ga. App. 446, 604 S.E.2d 197 (2004). Person who rented space in a cousin’s apartment without the landlord’s knowledge or consent was a trespasser, and the trial court properly dismissed an action that the person filed against the landlord and a company that managed the apartment complex seeking damages for injuries the person sustained when the person slipped and fell, because the evidence showed that neither the landlord nor the property manager breached their duty not to willfully or wantonly injure trespassers. Gomez v. Julian LeCraw & Co., 269 Ga. App. 576, 604 S.E.2d 532 (2004). Imputed liability for acts of independent contractor. — Summary judgment was properly entered for a realtor and a developer as to a landowner’s claim that the realtor and the developer were liable under O.C.G.A. §§ 51-2-4 and 51-2-5 for failing to ascertain the location of the boundary between the realtor’s lot and the landowner’s lot and communicate the boundary line to an independent contractor hired by the developer to brush the realtor’s; the developer testified that a creek and a transformer had been used as landmarks for the boundary line in instructing the contractor, and the landowner did not challenge the use of the landmarks. Sorrow v. Hadaway, 269 Ga. App. 446, 604 S.E.2d 197 (2004). Contractors and subcontractors. — Summary judgment was properly granted in favor of the home center company on the homeowners’ negligence claim because welding was not an intrinsically 9-11-56 dangerous activity for which the company remained responsible for its subcontractors; the company was not restricted by the contract in subcontracting the break down and removal of the trade-in mobile home, and was therefore not liable if this were done negligently. Luther v. Wayne Frier Home Ctr. of Tifton, Inc., 264 Ga. App. 827, 592 S.E.2d 470 (2003). Since a cause of action alleging that a subcontractor had negligently installed wiring in a house accrued on the date of substantial completion of the house for purposes of damage to the realty, a trial court erred in denying the subcontractor’s motion for summary judgment, which asserted that the case, filed more than four years after substantial completion of the house, was time barred as to damage to the real property; however, since the cause of action for damage to personal property damaged in the fire accrued on the date of the fire and not the date of substantial completion, the claim for damage to personalty was not time barred, and summary judgment as to that claim was properly denied. Stamschror v. Allstate Ins. Co., 267 Ga. App. 692, 600 S.E.2d 751 (2004). Trial court properly granted summary judgment to the materialman on an action to recover on a lien release bond after an electrical subcontractor did not pay for materials supplied to the subcontractor by the materialman, and despite the claim of the general contractor and surety that the materialman did not comply with a lien statute notice requirement; the lien statute notice requirement was meant to protect prospective purchasers from unknowingly buying property encumbered by liens and did not apply to the materialman’s situation because the materialman, acting as a lien claimant, was attempting to recover on a lien discharge bond that the general contractor and the surety had filed to discharge the lien against the electrical contractor. Washington Intl Ins. Co. v. Hughes Supply, Inc., 271 Ga. App. 50, 609 S.E.2d 99 (2004). There was no such thing as a default summary judgment, and even if a building owner failed to respond to a subcontractor’s summary judgment motion, the sub- 820 contractor was required to show that summary judgment was appropriate; summary judgment for the subcontractor against the building owner was reversed because there was no claim that the building owner was liable under the contract, no claim that the building owner received money to which the subcontractor was entitled, and no evidence that allowing the building owner to retain heat pumps supplied by the subcontractor violated some principle of equity, and the circumstances were insufficient to authorize summary judgment based on an implied constructive trust. Tabar, Inc. v. D & D Servs., 267 Ga. App. 659, 601 S.E.2d 143 (2004). Enforcement of materialman’s liens. — Because a notice under O.C.G.A. § 44-14-361.1(a)(3) was not filed within 14 days of a lien claimant’s suit being initiated, the lien was unenforceable, and the trial court did not err in granting a developer’s motion for partial summary judgment against the lien claimant; while the appeals court sympathized with the lien claimant’s argument that the claimant received a file-stamped copy and as a result believed no fee was due, ultimately it was the responsibility of the plaintiff and plaintiff ’s counsel to see that the appropriate fees were paid in a timely manner. Kendall Supply, Inc. v. Pearson Cmtys., Inc., 285 Ga. App. 863, 648 S.E.2d 158 (2007). Fair Business Practices Act. — Pursuant to O.C.G.A. § 10-1-401(a)(1), an action under the Fair Business Practices Act (FBPA), O.C.G.A. § 10-1-390 et seq., cannot be brought more than two years after the person bringing the action knew or should have known of the occurrence of the alleged violation; since the alleged contradictory language in a construction contract on which an FBPA claim was based was present when the contract was signed, the statute of limitations began running when the contract was signed; thus, an FBPA suit filed against a homebuilder more than two years after the date of the contract was untimely, and the trial court’s summary judgment in favor of the homebuilder was affirmed. Tiismann v. Linda Martin Homes Corp., 268 Ga. App. 787, 603 S.E.2d 45 (2004). 9-11-56 Misappropriation of trade secrets. — Because: (1) the trial court erred in holding that mere suspicion of a possible misappropriation of an employer’s trade secrets by one of its former employees amounted to objectively reasonable notice sufficient to trigger the running of the statute; and (2) a fact issue existed as to whether the suspicions reflected in the employer’s letters to the former employee’s counsel were sufficient to cause a reasonable person to investigate whether its trade secrets had been misappropriated, the trial court erred in granting the former employee partial summary judgment on the basis of the five-year statute of limitations under O.C.G.A. § 10-1-766. Porex Corp. v. Haldopoulos, 284 Ga. App. 510, 644 S.E.2d 349 (2007), cert. denied, 2007 Ga. LEXIS 498 (Ga. 2007). Fair Credit Reporting Act. — Because the record evidence showed that a customer failed to file suit alleging claims under the Fair Credit Reporting Act within the two years after a wireless service provider reported the customer’s outstanding debt to one credit agency, as required by 15 U.S.C. § 1681p, the suit was properly dismissed via summary judgment as time-barred. Lamb v. Verizon Wireless Servs., LLC, 284 Ga. App. 696, 644 S.E.2d 412 (2007). General premises liability for commercial entities. — In a customer’s premises liability action, because factual issues existed as to whether a retailer knew or should have known of a hazardous condition when it left a rolled-up carpet mat leaning on its end in the produce department, and whether the retailer could foresee that it would be knocked over and become a tripping hazard, summary judgment in favor of the retailer, and against the customer, was reversed. Freeman v. Wal-Mart Stores, Inc., 281 Ga. App. 132, 635 S.E.2d 399 (2006). In a wrongful death action against a church as a premises owner, because the decedent’s husband, as administrator of the estate, failed to raise a material fact question of the church’s liability for allowing its parishioners to park on the side of the roadway, and thus, obstruct the decedent’s view of the adjacent intersection, causing the decedent to collide with an 821 Applicability to Certain Actions, Proceedings, Issues, and Defenses (Cont’d) oncoming northbound vehicle, the church was properly granted summary judgment. Gay v. Redland Baptist Church, 288 Ga. App. 28, 653 S.E.2d 779 (2007). Trial court properly granted summary judgment to a retailer, in a customer’s negligence action filed against the retailer for injuries sustained when a tomato tower punctured an eye, as the customer’s injury arose out of a third party’s actions which the retailer did not and could not have foreseen, and hence no evidence was presented that the retailer breached a duty owed to the customer. Thomas v. Home Depot, U.S.A., Inc., 284 Ga. App. 699, 644 S.E.2d 538 (2007). In a customer’s personal injury action, a property owner was properly granted summary judgment as the owner had no duty to foresee any danger from the owner’s criminally damaged pay phone falling on the customer’s head, the way the injury occurred was not reasonably expected, and due to the fact that such could not occur except from the customer’s unexpected acts. McAfee v. ETS Payphones, Inc., 283 Ga. App. 756, 642 S.E.2d 422 (2007). Because: (1) the undisputed evidence presented to the trial court was that a retailer had no knowledge of a hazard posed by a previously loaded BB gun placed on an open display shelf and accessible to children; and (2) a parent failed to show that it was reasonably foreseeable that the parent’s child would take the gun and shoot the child’s sibling, the trial court did not err in granting the retailer summary judgment as to the issue of the retailer’s liability. Roberts v. Wal-Mart Stores, Inc., 287 Ga. App. 316, 651 S.E.2d 464 (2007). In a premises liability action, the trial court properly granted summary judgment to a participant in a contest held by a licensee, without considering the question of whether the participant assumed the risk of falling by participating in a jump-rope in a suit and dress shoes, as that participant failed to show that the licensee had control over the condition of 9-11-56 the premises where the contest was held, and had superior knowledge of the hazard or defect which allegedly caused the participant’s injuries. Dixon v. Infinity Broad. East, Inc., 289 Ga. App. 71, 656 S.E.2d 211 (2007). Because a party injured in a fall admitted to having actual knowledge not only of the alleged hazard which caused the fall, but of the specific danger the hazard presented, and as a result appreciated the danger involved, the trial court erred in denying summary judgment to the premises owner as to the issue of liability, given that based on the foregoing, the party should have avoided any injury in the exercise of ordinary care. Callaway Gardens Resort, Inc. v. Bierman, 290 Ga. App. 111, 658 S.E.2d 895 (2008). Because a skating rink patron failed to present sufficient evidence showing that the rink owners breached a duty by failing to have identifiable floor guards on duty at the time of the patron’s fall, and that the breach proximately caused the patron’s injuries, but instead, the unequivocal evidence showed that a floor guard was on duty at that time of the fall, the trial court properly granted summary judgment to the owners as to the issue of the owner’s liability. Moreover, testimony from other management personnel, who were not at the rink at the time of the fall, did not contradict the assistant manager’s positive assertions or written report and did not create a material issue of fact. Evans v. Sparkles Mgmt., LLC, 290 Ga. App. 458, 659 S.E.2d 860 (2008). General premises liability for homeowners, landlords, and others. — Summary judgment in favor of homeowners was affirmed in a premises liability claim based on an injury to a four-year-old child on a trampoline in the homeowners’ yard because there was no showing that the homeowners willfully or wantonly led the child into a hidden peril on the homeowners’ premises and, therefore, did not breach the duty of care owed to the homeowners’ social guest; however, when jury questions existed as to whether the homeowners undertook the supervision of the child and whether the homeowners used reasonable care to protect the child from injury, summary judgment on a 822 negligent supervision claim was reversed. Nunn v. Page, 265 Ga. App. 484, 594 S.E.2d 701 (2004). In a personal injury action, because an injured party failed to show that the landlords could not have had constructive notice of the deteriorated condition of the steps upon which that party fell and was injured, the landlords were not liable for the landlords’ failure to keep the premises in repair. Thus, the landlords were properly granted summary judgment as to the issue of liability for the party’s injuries. Stelter v. Simpson, 288 Ga. App. 402, 655 S.E.2d 237 (2007). In a premises liability action filed by a repairman arising from injuries suffered while repairing a roof, because the trial court properly found that an out-of-possession landlord and its tenants who surrendered control of the owned premises did not ratify the repairman’s employer’s actions in not providing safety equipment, and did not have superior knowledge of the dangers involved, the out-of-possession landlord and its tenants were properly granted summary judgment in the repairman’s premises liability action. Saunders v. Indus. Metals & Surplus, Inc., 285 Ga. App. 415, 646 S.E.2d 294 (2007), cert. denied, 2007 Ga. LEXIS 624 (Ga. 2007). Trial court properly granted summary judgment to an apartment complex owner, and against the decedent’s personal representative, in the latter’s premises liability action against the former as: (1) evidence was lacking that the vacant apartment where the decedent was murdered was negligently left unlocked; and (2) despite the criminal history of the area where the apartment was located, the owner had no reasonable belief to anticipate that a murder would have occurred on the owner’s premises. Moreover, guesses or speculation which raised merely a conjecture or possibility were insufficient to create even an inference of fact for consideration on summary judgment. Wojcik v. Windmill Lake Apts., Inc., 284 Ga. App. 766, 645 S.E.2d 1 (2007), cert. denied, 2007 Ga. LEXIS 637 (Ga. 2007). Because a painter failed to show that a homeowner’s knowledge of an electrical 9-11-56 wiring defect was superior to that of the painter, the homeowner was entitled to summary judgment as to the issue of the homeowner’s liability. Schuessler v. Bennett, 287 Ga. App. 880, 652 S.E.2d 884 (2007), cert. denied, 2008 Ga. LEXIS 230 (Ga. 2008). Landlord liability in guest’s premises liability lawsuit. — Trial court properly granted summary judgment to a landlord on the guest’s premises liability lawsuit as the pleadings, affidavits, depositions, and other material on file did not establish a genuine issue of material fact and the landlord was entitled to judgment as a matter of law; the guest did not show that the guest lacked knowledge of the hazard presented by descending a steep stairway to reach the tenant’s basement apartment since the guest had descended the stairway on four occasions without incident before being injured in a fall, and the guest also did not show that the steep stairway was the only way to access the apartment. Yon v. Shimeall, 257 Ga. App. 845, 572 S.E.2d 694 (2002). Slander of title. — Petition that a husband and wife filed against an attorney seeking $50,000 ‘‘for humiliation and embarrassment’’ they experienced because an attorney initiated a foreclosure action after they refused to pay a promissory note did not state a claim for special damages, and the state supreme court held that the trial court properly granted the attorney’s motion for summary judgment on the husband and wife’s claim alleging slander of title, even though the trial court dismissed the claim on other grounds. Latson v. Boaz, 278 Ga. 113, 598 S.E.2d 485 (2004). Negligent inspection claim. — Trial court properly granted summary judgment dismissing a home buyers’ claim of professional negligence against an engineering firm that performed an allegedly negligent inspection of the home because the buyers had no privity with the firm and none of the exceptions to this requirement applied. Smiley v. S & J Inves., Inc., 260 Ga. App. 493, 580 S.E.2d 283 (2003). Summary judgment was properly entered for a railroad as to an injured party’s premises liability claim based on a premises owner’s non-delegable duty to keep 823 Applicability to Certain Actions, Proceedings, Issues, and Defenses (Cont’d) the premises safe for the protection of invitees. The railroad neither owned nor occupied the sidetrack that was the site of the accident. Assuming that the railroad did own the sidetrack, there was no evidence that the railroad had any knowledge of the defective condition that was the result of its lessee’s use of a defective iron grate. The injured party conceded that the defective grate was not readily apparent and the injured party failed to show that the railroad would have discovered the defect had the railroad conducted a reasonable inspection. Mixon v. Ga. Cent. Ry., L.P., 266 Ga. App. 365, 596 S.E.2d 807 (2004). Landlord and tenant actions. — Summary judgment under O.C.G.A. § 9-11-56 for an owner, a manager, and a lessor of an apartment was properly entered in a tenant’s action for trespass arising out of the tenant’s eviction; the entry of the writ of possession was proper, on the writ’s face, under O.C.G.A. § 44-7-50. Vickers v.