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Pass v. Bouwsma9/10/1999
tion to strike Bouwsma's affidavit, because the order mentions plaintiff's attack on the affidavit as being merely a verification of the answer. The trial court went on to rule that "the affidavit describes the events of the evening in question in some detail." We agree that the affidavit provides precise, first hand testimony of specific facts as to what transpired that evening, so that the affidavit passed the requirements of OCGA § 9-11-56 (e). See also Worley v. Pierce, 211 Ga. App. 863 (440 SE2d 749) (1994). Unlike the party's affidavit in Spier v. Kreiger, 235 Ga. App. 392, 398 (2) ( SE2d ) (1998), Bouwsma's affidavit was factually detailed, relevant, material, and negated the essential elements of plaintiff's case.
Affidavits in support of summary judgment are not subject initially to cross-examination. Norton v. Georgia R. Bank & Trust Co., 248 Ga. 847 (285 SE2d 910) )1982), aff'd, 253 Ga. 596 (322 SE2d 870) (1984). A movant for summary judgment does not have to be subject to cross- examination before his affidavit may be considered in support of a motion for summary judgment. Mustin v. Citizens & Southern Nat. Bank, 168 Ga. App. 549 (309 SE2d 822) (1983). Under discovery, plaintiff had an opportunity to cross-examine the defendant on deposition, but failed to exercise such right; therefore, the affidavit is not subject to attack on such basis.
(b) Bouwsma's affidavit pierced plaintiff's complaint, which was based solely upon OCGA § 51-1-40 (b), i.e., liability for selling, furnishing, or serving alcoholic beverages to a person in a state of noticeable intoxication. In her affidavit, Bouwsma expressly denied that Glenn was ever in a state of noticeable intoxication and that she ever sold, furnished, or served any alcoholic beverage to him. Thus, Bouwsma showed that two essential elements of the cause of action under OCGA § 51-1-40 (b) could not be met by the plaintiff. See Kappa Sigma Intl. Frat. v. Tootle, 221 Ga. App. 890, 893 (473 SE2d 213) (1996). Therefore, she conclusively negated at least one essential element of plaintiff's cause of action. Goodwin v. Mullins, 122 Ga. App. 84 (176 SE2d 551) (1970). The burden of coming forward with any evidence to create a material issue of fact for the jury shifted to the plaintiff. OCGA § 9-11-56 (e); Richards v. Tolbert, 232 Ga. 678 (208 SE2d 486) (1974). Plaintiff filed no affidavit or other evidence to contravene Bouwsma's affidavit and to create a jury question so as to defeat summary judgment. See Greene v. Fulton-DeKalb Hosp. Auth., 177 Ga. App. 499 (339 SE2d 770) (1986). Therefore, defendant was entitled to the grant of summary judgment when plaintiff's attack on Bouwsma's affidavit failed. See Lau's Corp., Inc. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).
Judgment affirmed. Pope, P. J., and Smith, J., concur.
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