Prophecy rule in Georgia

2025Indeed, Georgia courts have “never applied the Prophecy rule to the testimony of a non-party witness[.]” Thompson, 272 Ga. at 851 (2).

2025Indeed, Georgia courts have “never applied the Prophecy rule to the testimony of a non-party witness[.]” Thompson, 272 Ga. at 851 (2).

2026For purposes of this appeal, references to “Brown” are made in context without distinction between William Brown and his estate. 2 Under the Prophecy rule, “when a party has given contradictory testimony, and when that party relies exclusively on that testimony in opposition to summary judgment, a court must ‘construe the contradictory testimony against him.’” Bradley v. Winn-Dixie Stores, Inc., 314 Ga. App. 556, 557 ( 724 SE2d 855 ) (2012) (footnote omitted) (citing Prophecy Corp., 256 Ga. at 28 (1)). 2 punitive damages, and attorney fees.

2026For purposes of this appeal, references to “Brown” are made in context without distinction between William Brown and his estate. 2 Under the Prophecy rule, “when a party has given contradictory testimony, and when that party relies exclusively on that testimony in opposition to summary judgment, a court must ‘construe the contradictory testimony against him.’” Bradley v. Winn-Dixie Stores, Inc., 314 Ga. App. 556, 557 ( 724 SE2d 855 ) (2012) (footnote omitted) (citing Prophecy Corp., 256 Ga. at 28 (1)). 2 punitive damages, and attorney fees.

2026For purposes of this appeal, references to “Brown” are made in context without distinction between William Brown and his estate. 2 Under the Prophecy rule, “when a party has given contradictory testimony, and when that party relies exclusively on that testimony in opposition to summary judgment, a court must ‘construe the contradictory testimony against him.’” Bradley v. Winn-Dixie Stores, Inc., 314 Ga. App. 556, 557 ( 724 SE2d 855 ) (2012) (footnote omitted) (citing Prophecy Corp., 256 Ga. at 28 (1)). 2 punitive damages, and attorney fees.

2026For purposes of this appeal, references to “Brown” are made in context without distinction between William Brown and his estate. 2 Under the Prophecy rule, “when a party has given contradictory testimony, and when that party relies exclusively on that testimony in opposition to summary judgment, a court must ‘construe the contradictory testimony against him.’” Bradley v. Winn-Dixie Stores, Inc., 314 Ga. App. 556, 557 ( 724 SE2d 855 ) (2012) (footnote omitted) (citing Prophecy Corp., 256 Ga. at 28 (1)). 2 punitive damages, and attorney fees.

2026See CSX Transp. v. Belcher, 276 Ga. 522, 523 (1) ( 579 SE2d 737 ) (2003) (holding that the Prophecy rule does not apply to unsworn testimony).

2026See CSX Transp. v. Belcher, 276 Ga. 522, 523 (1) ( 579 SE2d 737 ) (2003) (holding that the Prophecy rule does not apply to unsworn testimony).

2015Accordingly, under the Prophecy rule, we must disregard “the favorable portions of Pier] contradictory testimony and then construe the remaining testimony and evidence in favor of the [defendants] to determine whether summary judgment should be granted.” (Citation and punctuation omitted.) Price v. Thapa, 323 Ga. App. 638, 640 ( 745 SE2d 311 ) (2013).

2015Accordingly, under the Prophecy rule, we must disregard “the favorable portions of Pier] contradictory testimony and then construe the remaining testimony and evidence in favor of the [defendants] to determine whether summary judgment should be granted.” (Citation and punctuation omitted.) Price v. Thapa, 323 Ga. App. 638, 640 ( 745 SE2d 311 ) (2013).

2015Indeed, Hulsey has asserted on these three separate occasions that he “pulled [his truck straight in [his] lane”; “straightened, turned it back straight up, straightened out in my lane”; “move[d] back in the lane [he] was [in]”; “pulled back in the lane [he] was in”; and “straightened [his] vehicle which was still in the . . . lane in which [he] had been driving.” Thus, it is not, as the majority asserts, impossible that Hulsey moved “back” into a lane he was already occupying when Hulsey’s prior testimony reflects that he 6 Price v. Thapa, 323 Ga. App. 638, 640 ( 745 SE2d 311 ) (2013); accord

2015Indeed, Hulsey has asserted on these three separate occasions that he “pulled [his truck straight in [his] lane”; “straightened, turned it back straight up, straightened out in my lane”; “move[d] back in the lane [he] was [in]”; “pulled back in the lane [he] was in”; and “straightened [his] vehicle which was still in the . . . lane in which [he] had been driving.” Thus, it is not, as the majority asserts, impossible that Hulsey moved “back” into a lane he was already occupying when Hulsey’s prior testimony reflects that he 6 Price v. Thapa, 323 Ga. App. 638, 640 ( 745 SE2d 311 ) (2013); accord

2025See Hudgens v. Broomberg, 262 Ga. 271 ( 416 SE2d 287 ) (1992) (Prophecy rule concerning contradictory testimony applies to prior testimony given in another case and not merely to testimony given in the current case).

2025See Hudgens v. Broomberg, 262 Ga. 271 ( 416 SE2d 287 ) (1992) (Prophecy rule concerning contradictory testimony applies to prior testimony given in another case and not merely to testimony given in the current case).

2012Sunlink Health Systems v. Pettigrew, 286 Ga. App. 339, 341 ( 649 SE2d 532 ) (2007); see also Hallberg, supra, 225 Ga. App. at 214-215 (1) (rejecting plaintiffs attempt to correct deposition testimony that she was “not quite sure” how her fall occurred). (b) As the Supreme Court of Georgia has held, in order to recover for injuries sustained in a slip-and-fall action, an invitee must prove (1) that the defendant had actual or constructive knowledge of the hazard; and (2) that the plaintiff lacked knowledge of the hazard despite the exercise of ordinary care due to actions or conditions within t

2012Sunlink Health Systems v. Pettigrew, 286 Ga. App. 339, 341 ( 649 SE2d 532 ) (2007); see also Hallberg, supra, 225 Ga. App. at 214-215 (1) (rejecting plaintiffs attempt to correct deposition testimony that she was “not quite sure” how her fall occurred). (b) As the Supreme Court of Georgia has held, in order to recover for injuries sustained in a slip-and-fall action, an invitee must prove (1) that the defendant had actual or constructive knowledge of the hazard; and (2) that the plaintiff lacked knowledge of the hazard despite the exercise of ordinary care due to actions or conditions within t

2012Sunlink Health Systems v. Pettigrew, 286 Ga. App. 339, 341 ( 649 SE2d 532 ) (2007); see also Hallberg, supra, 225 Ga. App. at 214-215 (1) (rejecting plaintiffs attempt to correct deposition testimony that she was “not quite sure” how her fall occurred). (b) As the Supreme Court of Georgia has held, in order to recover for injuries sustained in a slip-and-fall action, an invitee must prove (1) that the defendant had actual or constructive knowledge of the hazard; and (2) that the plaintiff lacked knowledge of the hazard despite the exercise of ordinary care due to actions or conditions within t

2012Sunlink Health Systems v. Pettigrew, 286 Ga. App. 339, 341 ( 649 SE2d 532 ) (2007); see also Hallberg, supra, 225 Ga. App. at 214-215 (1) (rejecting plaintiffs attempt to correct deposition testimony that she was “not quite sure” how her fall occurred). (b) As the Supreme Court of Georgia has held, in order to recover for injuries sustained in a slip-and-fall action, an invitee must prove (1) that the defendant had actual or constructive knowledge of the hazard; and (2) that the plaintiff lacked knowledge of the hazard despite the exercise of ordinary care due to actions or conditions within t

1999Ambler v. Archer, 230 Ga. 281, 287 (1), 196 S.E.2d 858 (1973). [6] In any event, Harvey does not seek to apply the Prophecy rule here, but only challenges Reddick's right to make substantive changes to her deposition.

1999Ambler v. Archer, 230 Ga. 281, 287 (1), 196 S.E.2d 858 (1973). [6] In any event, Harvey does not seek to apply the Prophecy rule here, but only challenges Reddick's right to make substantive changes to her deposition.

2024It is “intended to remove any incentive for witnesses responding to a motion for summary judgment to tailor their statement to 11 meet the needs of the occasion without regard to the truth.” (Citation and punctuation omitted.) Rhodes v. ABC School Supply, 223 Ga. App. 134, 136 (1) ( 476 SE2d 773 ) (1996).

2024It is “intended to remove any incentive for witnesses responding to a motion for summary judgment to tailor their statement to 11 meet the needs of the occasion without regard to the truth.” (Citation and punctuation omitted.) Rhodes v. ABC School Supply, 223 Ga. App. 134, 136 (1) ( 476 SE2d 773 ) (1996).

2024(Citation omitted.) James v. Ga. Dept. of Public Safety, 337 Ga. App. 864, 869 (3) ( 789 SE2d 236 ) (2016). 2 The rule is also referred to as “the Prophecy rule,” referring to Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27 ( 343 SE2d 680 ) (1986).

2024(Citation omitted.) James v. Ga. Dept. of Public Safety, 337 Ga. App. 864, 869 (3) ( 789 SE2d 236 ) (2016). 2 The rule is also referred to as “the Prophecy rule,” referring to Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27 ( 343 SE2d 680 ) (1986).

2021Compare Kelly v. Fann, 343 Ga. App. 351, 354 ( 807 SE2d 98 ) (2017) (affirming grant of summary judgment to driver who hit bull where there was no evidence whatsoever about where the bull was or what it was doing immediately before collision; noting that “if the evidence . . . were in conflict about where the bull was and what it was doing at the time of the collision, summary 7 “The Prophecy rule requires trial courts, when considering summary judgment motions, to (1) eliminate all portions of a party’s self-contradictory testimony that are favorable to, and left unexplained by, that party; a

2021Compare Kelly v. Fann, 343 Ga. App. 351, 354 ( 807 SE2d 98 ) (2017) (affirming grant of summary judgment to driver who hit bull where there was no evidence whatsoever about where the bull was or what it was doing immediately before collision; noting that “if the evidence . . . were in conflict about where the bull was and what it was doing at the time of the collision, summary 7 “The Prophecy rule requires trial courts, when considering summary judgment motions, to (1) eliminate all portions of a party’s self-contradictory testimony that are favorable to, and left unexplained by, that party; a

2020Even so, the Prophecy rule is “applicable in this case since whatever claim the plaintiff[s] may have against the [insurer] is derived from and based on [the insured’s] rights under the policy.” Henson v. Atlanta Casualty Co., 169 Ga. App. 754, 755 ( 315 SE2d 268 ) (1984). 10 Merritt, 218 Ga. App. at 654 , quoting Colevins v. Federated Dept.

2020Even so, the Prophecy rule is “applicable in this case since whatever claim the plaintiff[s] may have against the [insurer] is derived from and based on [the insured’s] rights under the policy.” Henson v. Atlanta Casualty Co., 169 Ga. App. 754, 755 ( 315 SE2d 268 ) (1984). 10 Merritt, 218 Ga. App. at 654 , quoting Colevins v. Federated Dept.

2020Stores, 213 Ga. App. 49, 50 (2) ( 443 SE2d 871 ) (1994), overruled on other grounds by Robinson v. Kroger, 268 Ga. 735, 739 ( 493 SE2d 403 ) (1997). 11 See Moss, 212 Ga. App. at 328 (affirming the grant of summary judgment to the insurer in light of the insured’s failure “to explain the contradiction between his 9 2.

2020Stores, 213 Ga. App. 49, 50 (2) ( 443 SE2d 871 ) (1994), overruled on other grounds by Robinson v. Kroger, 268 Ga. 735, 739 ( 493 SE2d 403 ) (1997). 11 See Moss, 212 Ga. App. at 328 (affirming the grant of summary judgment to the insurer in light of the insured’s failure “to explain the contradiction between his 9 2.

2020Stores, 213 Ga. App. 49, 50 (2) ( 443 SE2d 871 ) (1994), overruled on other grounds by Robinson v. Kroger, 268 Ga. 735, 739 ( 493 SE2d 403 ) (1997). 11 See Moss, 212 Ga. App. at 328 (affirming the grant of summary judgment to the insurer in light of the insured’s failure “to explain the contradiction between his 9 2.

2020Stores, 213 Ga. App. 49, 50 (2) ( 443 SE2d 871 ) (1994), overruled on other grounds by Robinson v. Kroger, 268 Ga. 735, 739 ( 493 SE2d 403 ) (1997). 11 See Moss, 212 Ga. App. at 328 (affirming the grant of summary judgment to the insurer in light of the insured’s failure “to explain the contradiction between his 9 2.

2020Stores, 213 Ga. App. 49, 50 (2) ( 443 SE2d 871 ) (1994), overruled on other grounds by Robinson v. Kroger, 268 Ga. 735, 739 ( 493 SE2d 403 ) (1997). 11 See Moss, 212 Ga. App. at 328 (affirming the grant of summary judgment to the insurer in light of the insured’s failure “to explain the contradiction between his 9 2.

2020Stores, 213 Ga. App. 49, 50 (2) ( 443 SE2d 871 ) (1994), overruled on other grounds by Robinson v. Kroger, 268 Ga. 735, 739 ( 493 SE2d 403 ) (1997). 11 See Moss, 212 Ga. App. at 328 (affirming the grant of summary judgment to the insurer in light of the insured’s failure “to explain the contradiction between his 9 2.

2019See Founders Kitchen & Bath v. Alexander, 334 Ga. App. 389, 393-394 ( 779 SE2d 668 ) (2015) (reversing a grant of summary judgment when a trial court erred in applying the Prophecy rule to exclude a party’s “purported contradiction” concerning the existence or non-existence of a contract when the party offered a reasonable explanation for that contradiction). (b) Because the memorandum had no specific starting date and a term of five years, it was subject to the statute of frauds, which requires that “[a]ny agreement that is not to be performed within one year from the making thereof” must be

2019See Founders Kitchen & Bath v. Alexander, 334 Ga. App. 389, 393-394 ( 779 SE2d 668 ) (2015) (reversing a grant of summary judgment when a trial court erred in applying the Prophecy rule to exclude a party’s “purported contradiction” concerning the existence or non-existence of a contract when the party offered a reasonable explanation for that contradiction). (b) Because the memorandum had no specific starting date and a term of five years, it was subject to the statute of frauds, which requires that “[a]ny agreement that is not to be performed within one year from the making thereof” must be

2018See Hudgens v. Broomberg , 262 Ga. 271 , 416 S.E.2d 287 (1992) ( Prophecy rule concerning contradictory testimony applies to prior testimony given in another case and not merely to testimony given in the current case); accord Shiver v. Norfolk-Southern Ry. , 225 Ga. App. 544 , 547 (1), 484 S.E.2d 503 (1997) ("The Supreme Court, in Hudgens [, supra], held that the contradictory testimony rule applies to any prior testimony and not merely to testimony given at the trial of the case.").

2018See Hudgens v. Broomberg , 262 Ga. 271 , 416 S.E.2d 287 (1992) ( Prophecy rule concerning contradictory testimony applies to prior testimony given in another case and not merely to testimony given in the current case); accord Shiver v. Norfolk-Southern Ry. , 225 Ga. App. 544 , 547 (1), 484 S.E.2d 503 (1997) ("The Supreme Court, in Hudgens [, supra], held that the contradictory testimony rule applies to any prior testimony and not merely to testimony given at the trial of the case.").

2017See Hayward v. Kroger Co., 317 Ga. App. 795, 798-799 (3) (a) ( 733 SE2d 7 ) (2012).

2017See Hayward v. Kroger Co., 317 Ga. App. 795, 798-799 (3) (a) ( 733 SE2d 7 ) (2012).

2017See Pinckney v. Covington Athletic Club and Fitness Center, 288 Ga. App. 891, 893-894 ( 655 SE2d 650 ) (2007) (citation omitted) (applying the Prophecy rule and holding that where evidence did not raise a genuine issue of fact as to why plaintiff fell, summary judgment was properly granted to defendant); Pennington v. WJL, LLC, 263 Ga. App. 758, 761 (2) ( 589 SE2d 259 ) (2003) (affirming grant of summary judgment to defendant when the only causation evidence was the presence of hoses at the accident scene and “speculation after the fact” that plaintiff must have tripped over them); Moore v. Te

2017See Pinckney v. Covington Athletic Club and Fitness Center, 288 Ga. App. 891, 893-894 ( 655 SE2d 650 ) (2007) (citation omitted) (applying the Prophecy rule and holding that where evidence did not raise a genuine issue of fact as to why plaintiff fell, summary judgment was properly granted to defendant); Pennington v. WJL, LLC, 263 Ga. App. 758, 761 (2) ( 589 SE2d 259 ) (2003) (affirming grant of summary judgment to defendant when the only causation evidence was the presence of hoses at the accident scene and “speculation after the fact” that plaintiff must have tripped over them); Moore v. Te

2017See Pinckney v. Covington Athletic Club and Fitness Center, 288 Ga. App. 891, 893-894 ( 655 SE2d 650 ) (2007) (citation omitted) (applying the Prophecy rule and holding that where evidence did not raise a genuine issue of fact as to why plaintiff fell, summary judgment was properly granted to defendant); Pennington v. WJL, LLC, 263 Ga. App. 758, 761 (2) ( 589 SE2d 259 ) (2003) (affirming grant of summary judgment to defendant when the only causation evidence was the presence of hoses at the accident scene and “speculation after the fact” that plaintiff must have tripped over them); Moore v. Te

2017See Pinckney v. Covington Athletic Club and Fitness Center, 288 Ga. App. 891, 893-894 ( 655 SE2d 650 ) (2007) (citation omitted) (applying the Prophecy rule and holding that where evidence did not raise a genuine issue of fact as to why plaintiff fell, summary judgment was properly granted to defendant); Pennington v. WJL, LLC, 263 Ga. App. 758, 761 (2) ( 589 SE2d 259 ) (2003) (affirming grant of summary judgment to defendant when the only causation evidence was the presence of hoses at the accident scene and “speculation after the fact” that plaintiff must have tripped over them); Moore v. Te

2016See Franklin v. Eaves, 337 Ga. App. 292 ( 787 SE2d 265 ) (2016). 3 The Cochran Firm also points to the following statement made in Tolson’s unverified answer: “The employment relationship between Defendant Tolson and the entity that employed her ... was governed by a contractual understanding, and unjust enrichment does not lie.” This statement, however, does not implicate the Prophecy rule.

2016See Franklin v. Eaves, 337 Ga. App. 292 ( 787 SE2d 265 ) (2016). 3 The Cochran Firm also points to the following statement made in Tolson’s unverified answer: “The employment relationship between Defendant Tolson and the entity that employed her ... was governed by a contractual understanding, and unjust enrichment does not lie.” This statement, however, does not implicate the Prophecy rule.

2016And once you resolved the cases, that 25 percent of the fee would be carved out for the lawyers, the associates working on the cases, and then you’d split it.” Tolson also testified, “If the case paid off, the firm would pay me.” She understood that she was an at-will employee whom the firm could fire anytime, and that she also had the right to quit at any time. 3 It may be true that “a direct question is not necessary to establish a conflict that implicates the Prophecy rule.” Whole Foods Market Group v. Shepard, 333 Ga. App. 137, 139 (2) ( 775 SE2d 616 ) (2015) (physical precedent only).

2016And once you resolved the cases, that 25 percent of the fee would be carved out for the lawyers, the associates working on the cases, and then you’d split it.” Tolson also testified, “If the case paid off, the firm would pay me.” She understood that she was an at-will employee whom the firm could fire anytime, and that she also had the right to quit at any time. 3 It may be true that “a direct question is not necessary to establish a conflict that implicates the Prophecy rule.” Whole Foods Market Group v. Shepard, 333 Ga. App. 137, 139 (2) ( 775 SE2d 616 ) (2015) (physical precedent only).

2015See Walker v. Brannan, 243 Ga. App. 235, 237 ( 533 SE2d 129 ) (2000).

2015See Walker v. Brannan, 243 Ga. App. 235, 237 ( 533 SE2d 129 ) (2000).