
    51702.
    LESTER v. B. P. OIL COMPANY, INC. et al.
   Quillian, Judge.

The plaintiff (appellant) brought an action against the defendants seeking recovery for the death of her son, and alleged "that defendants, B. P. Oil Co., Inc. and James Banks, acting independently and in concert, did, in a negligent and reckless manner, create and allow to continue, a hazardous condition which existed on the premises at 7037 Swift Street, Lithonia, DeKalb County, Georgia, the same being the proximate cause of the death of the decedent.”

The defendant B. P. Oil Company (appellee) moved for summary judgment on the ground that there was no genuine issue as to any material fact. The motion was sustained and plaintiff appeals. Held:

Argued January 15, 1976

Decided February 5, 1976.

John Kirby, for appellant.

Swift, Currie, McGhee & Hiers, William C. Sanders, George W. Hart, for appellees.

The defendant by interrogatory inquired: "What hazardous condition does plaintiff contend existed on the premises at 7037 Swift Street, Lithonia, DeKalb County, Georgia?” There is a reference in defendant’s brief to a purported answer, to wit: "Open flame in gas heater located in station.” No answer to such interrogatory is to be found in the record and the clerk of the trial court has certified that plaintiffs answers to the interrogatories were not filed below.

Under such circumstances, plaintiff has in no way conceded that the sole basis for recovery was an open flame in a gas heater. That being true and since the burden was on the defendant, as movant, to establish that the plaintiff can not recover, it was error to grant the motion for summary judgment.

Judgment reversed.

Deen, P. J., and Webb, J., concur.  