Analyzing Whether a Post-Deposition Affidavit Should be Excluded under the Sham Affidavit Doctrine

A South Carolina woman’s attempt to change her story in a trip-and-fall lawsuit backfired when the Court of Appeals upheld the trial court’s ruling excluding what it called a “Sham Affidavit” submitted in opposition of the defendant’s motion for summary judgment. In Peterkin v. Bummz Beach, LLC, 2024-UP-144 (May 1, 2024), the Court of Appeals affirmed the trial court’s grant of summary judgment to defendant. Peterkin sued Bummz on the Beach, Inc. (“Bummz”), alleging that she fell on the sidewalk that she believed to be owned or controlled by Bummz. Through the course of discovery, it was determined that the sidewalk was not owned or controlled by Bummz. During her deposition, in which Peterkin testified under oath, Peterkin was asked what caused her fall. Peterkin stated she was “not absolutely sure” what caused her fall and she could not say that the fall was caused by a palm tree bush (adjacent to the sidewalk), which was owned and maintained by Bummz.

Bummz moved for summary judgment. In opposition to the motion, Peterkin filed an affidavit. In the affidavit, Peterkin attested that she “tripped and fell on a piece of raised concrete directly in front of the restaurant” and “[s]ince it was both dark, and because a Bummz palm tree bush was hanging over the raised concrete [she] couldn’t see the danger and [she] tripped. Peterkin did not explain in the affidavit the contradiction between her affidavit and her deposition testimony for the cause of the fall. Peterkin argued this testimony created a question of fact and, therefore, summary judgment should be denied.

The trial court was unconvinced, and in a somewhat unusual move, analyzed whether the submitted affidavit was a “Sham Affidavit,” under Cothran v. Brown, 357 S.C. 210, 218, 592 S.E.2d 629, 633 (2004). The Sham Affidavit Doctrine prevents a person from changing their sworn testimony just to win a case. Cothran outlines six factors: 1. Whether an explanation is offered for the statements that contradict prior sworn statements; 2. The important to the litigation of the fact about which there is a contraction; 3. Whether the nonmovant had access to this fact prior to the previous sworn testimony; 4. The frequency and degree of variation between statements in the previous sworn testimony and statements made in the later affidavit concerning this fact; 5. Whether the previous sworn testimony indicates the witness was confused at the time; 6. When, in relation to summary judgment, the second affidavit is submitted. The trial court found the factors weighed in favor of the affidavit being declared a sham affidavit and not subject to consideration as part of the summary judgment analysis. Ultimately, the trial court held that Peterkin failed to create a question of fact as to the cause of her fall as it related to Bummz’s negligence and therefore, was unable to prove an essential element to her case and granted summary judgment in favor of Bummz. The Court of Appeal agreed.

This recent decision sends a strong message about attempts by plaintiffs to restate or massage evidence after the fact. We oftentimes see varying accounts of events as cases develop without any new evidence presented to justify the change. Businesses in South Carolina may take some comfort that the courts are prepared to scrutinize post-deposition affidavits, particularly at the summary judgment phase.

About Kelsey J. Brudvig
Senior Shareholder

Kelsey Brudvig is a Shareholder practicing in the areas of retail & hospitality law and professional liability. She defends national and regional leaders in the retail, hospitality, and entertainment sectors doing business in South Carolina in claims involving premises liability, loss prevention, food adulteration, third party torts, and alcohol liability. Kelsey can be reached directly at