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Anglin v. Harris5/22/2000
he date it was." When asked what day of the week that was, she answers "I believe it was a Monday, Monday or Tuesday." When told that the officer's report indicates the accident happened on a Monday and asked whether she would dispute that, Anglin replies that she would not. And when asked "If it occurred on a Monday, would you concede that it occurred on October 14th, 1996?" She responded "Yes, sir."
Similarly, when asked on deposition why he maintains the accident occurred on October 15, 1996, Anglin's husband states "It was just - - It was the 15th." The husband adds that his statement is based on the police report. When asked what day of the week that was, he replies, "Monday or Tuesday. Monday, I believe. Tuesday. It was the first of the week." Her husband, therefore, was also unsure of when it happened. We note that he bases his date of the 15th solely on the police report, but the officer who authored it has since testified that the date he wrote on the report is incorrect.
Thus, Anglin's own evidence is, at best, equivocal as to the day and date of the accident. The testimony of a respondent on summary judgment is to be construed against her where it is self-contradictory, vague or equivocal. In light of this principle, and considering the unequivocal medical records showing October 14 as the accident date, and taking judicial notice of the calendar indicating that the second Monday in October 1996 was the 14th, there is no genuine issue of material fact as to when the accident happened. "A shadowy semblance of an issue is not enough to defeat the motion for summary judgment." The trial court correctly concluded that no genuine issue of material fact exists as to the date and that the applicable statute of limitation expired before the action was filed.
2. The only issue remaining for our consideration, therefore, is whether Anglin has presented evidence which would toll the statute. As she points out, the two-year statute of limitation provided by OCGA ยง 9- 3-33 may be tolled where a plaintiff is mentally incompetent to handle her affairs. In order to survive Simbeck's motion for summary judgment, Anglin was required to present some evidence of mental disability which would toll the statute of limitation. The test is whether she suffered from such unsoundness of mind or imbecility as to be incapable of managing the ordinary affairs of life.
In support of her position that she was mentally disabled for several days after the accident, Anglin relies on her own affidavit in which she states that she became upset and very depressed after the accident, primarily due to her concern about her sixteen-month-old daughter, who was in car at the time the tractor-trailer struck their car, but who was not physically injured. We note that Anglin, who was admitted to the emergency room complaining of arm, head, neck and back pain, was diagnosed as having no acute injuries and was discharged about an hour later in good condition.
In her deposition given in February 1999, Anglin testifies that starting the evening of the accident she "just laid in bed," but remarked that she did so because of neck and back pain. She states that she stayed in bed for the next few days as well as a result of the neck and back pain. She adds that she "was just totally out of it with the pain and everything that happened," that she slept and "sometimes just laid there and hurt." When asked why she was "out of it," Anglin responds "(b)ecause of the pain being so severe." She agrees that her husband suggested going to see a doctor during those first few days, but that they mutually decided to wait several days to see how she was feeling. She further agrees that she was unable to tak
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