Prophecy Fulfilled: How Contradictory Statements Sink Cases at Summary Judgment
By: Cat Gavrilidis
A motion for summary judgment can be an invaluable tool for defendants in litigation. When granted, summary judgment can limit the number of triable issues or result in dismissal of the case altogether, avoiding the costs and risks associated with trial.
The summary judgment standard in Georgia (and federal) courts is long settled. Summary judgment is proper “when there is no genuine issue of material fact and the movant is entitled to summary judgment as a matter of law . . . . [The courts] view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.” O.C.G.A. § 9-11-56(c); Fed. R. Civ. P. 56(a); P&D Ole Times, LLC v. McCray, 369 Ga. App. 270, 271 (2023). When the defendant moves for summary judgment, he bears the burden of showing no genuine dispute of material fact exists.
However, courts have also long recognized that during the summary judgment stage, plaintiffs are capable of succumbing to the “temptations to perjury” by using conflicting affidavits to survive a defendant’s motion. Chandler v. Gately, 119 Ga. App. 513, 523 (1969). Thus, the “self-contradicting testimony” rule was born: where a party testifies on his own behalf, his testimony will be construed in the light most unfavorable to him if the testimony is contradictory, vague or equivocal. See, S. Ry. Co. v. Hobbs, 121 Ga. 428 (1904); W. & A.R. Co. v. Evans, 96 Ga. 481 (1895).
The “self-contradictory testimony” rule, colloquially known as the Prophecy rule, has been refined over the years. The Supreme Court of Georgia, in Prophecy Corp. v. Charles Rossignol, Inc., provided the appropriate analytical format for handling contradicting testimony. 256 Ga. 27 (1986). First, the judge determines whether the testimony is contradictory. If it is, the burden shifts to the party-witness to show a reasonable excuse for the contradiction. If the party-witness fails to meet this burden, the testimony is construed against him. The judge then eliminates those portions of testimony from consideration or construes them against the contradictory party-witness in deciding whether the case should survive summary judgment.
Earlier this year in Smith v. Six Flags Over Georgia II, LP., the Georgia Court of Appeals performed a thorough analysis of a plaintiff’s self-contradicting statements. 370 Ga. App. 778, 779 (2024). The plaintiff, Mattie Smith, brought negligence claims against Six Flags when she fell and was injured while exiting the basket of a ride.
The court of appeals compared three instances where the trial court had concluded Smith’s prior deposition testimony contradicted the affidavit she submitted in her opposition to Six Flags’ summary judgment motion.
First, during her deposition, Smith testified she only remembered one employee being present from the time she entered the ride until she fell. However, in her affidavit, she claimed she saw two employees – one operating the ride and another letting people out of the baskets. Smith attempted to explain the contradiction, providing she remembered only one employee before the ride started and during its operation, but the court of appeals agreed with the trial court these statements were clearly contradictory.
Next, Smith also gave deposition testimony that she fell because the basket moved “from left to right.” When asked to elaborate in the deposition, Smith could not provide any further details and said the left to right movement was “the only thing” she knew. However, in her later affidavit, she claimed that, after she fell, she noticed the basket was positioned about a foot higher than usual, and she attributed the basket’s upward motion to her fall. Though she attempted to explain this contradiction by advising she was not asked about the location of the basket during her deposition, the court of appeals again agreed with the trial court that a clear contradiction existed where Smith “only” knew about lateral movement but subsequently attested to vertical movement.
Finally, the court of appeals did not find a contradiction existed where Smith’s affidavit stated a buzzing noise was present, despite her failure to mention the buzzing noise during her deposition. Unlike her affirmative testimony regarding the basket’s movements, the buzzing noise was not addressed during her deposition. As a result, the court concluded her silence on the topic did not contradict her later testimony that a buzzing noise had been present, illustrating the importance of asking probing questions during depositions.
Regardless, the two contradictions found by the court of appeals were sufficient to uphold the trial court’s grant of summary judgment to Six Flags.
Thus, in moving for summary judgment, it is vital for defendants to compare all statements provided by a plaintiff under oath, which will generally include the plaintiff’s verified interrogatory responses, deposition testimony and affidavits, to determine whether any clear or significant contradictions are present. These should be pointed out to the court, and the defendant may even make a recommendation to the court about how to interpret the statements least favorably to the plaintiff or whether the statements should simply be disregarded. The court should evaluate the contradictions in deciding the summary judgment motion and may take the defendant’s recommendations into consideration in reaching its decision.
Attorney Contact Info
Cat Gavrilidis
cat.gavrilidis@swiftcurrie.com
404.888.6186