Harless v. Willis Day Warehousing Co.

• Decision Date: 19 April 1978
• Docket Number: No. 77-637,77-637
• Parties: , 8 O.O.3d 73 HARLESS et al., Appellants, v. WILLIS DAY WAREHOUSING COMPANY, INC., et al., Toledo Edison Company et al., Appellees.
• Court: Ohio Supreme Court

Page 64

54 Ohio St.2d 64

375 N.E.2d 46, 8 O.O.3d 73

HARLESS et al., Appellants, v. WILLIS DAY WAREHOUSING COMPANY, INC., et al., Toledo Edison Company et al., Appellees.

No. 77-637.

Supreme Court of Ohio.

April 19, 1978.

The following facts are undisputed in the instant cause:

In 1965, Rossbay, Inc., an appellee herein, purchased land in an area known as Willis Day Industrial Park, Rossbay leased a portion of the land to Hunt-Wesson Foods, Inc. (hereinafter "Hunt-Wesson"). Hunt-Wesson had a storage tank constructed on these premises and, in 1967, contracted with Toledo Edison Company, an appellee herein, for the installation of new power lines to serve the Hunt-Wesson facilities.

On December 17, 1972, Ray M. Harless, an appellant herein, climbed the tank to investigate its contents. Plant engineer John P. Edwards supervised Harless in assembling a 30-foot metallic pole for insertion into the tank.

During the insertion process, appellants allege, one end of the pole came into the proximity of the overhead power lines. The parties apparently agree that an electric current passed through the pole, resulting in electric shock and serious physical harm to Harless.

Harless filed his original complaint against Willis Day Warehousing Company, Inc., and Toledo Edison Company, alleging negligence in the placement, type and maintenance of the power lines. The complaint was amended to add Pamela Harless as party plaintiff, and Rossbay, Inc., and L. E. Meyers Company as defendants. Thereafter, upon appellees' motions for summary judgment, the Court of Common Pleas concluded that judgment should be granted to Rossbay, Inc., and Toledo Edison Company, and that the amended complaint against those two parties be dismissed.

The Court of Appeals affirmed the judgment of the trial court, and the cause is now before us pursuant to the allowance of a motion to certify the record.

Cannon, Burns, Mickel & Geller and Kenneth L. Mickel, Toledo, for appellants.

Fuller, Henry, Hodge & Snyder, Paul M. Smart, Thomas L. Darymple and John J. McHugh, III, Toledo, for appellee Toledo Edison Co.

Neipp, Dorrell & Wingart and R. Paul Wingart, Toledo, for appellee Rossbay, Inc.

PER CURIAM.

Civ.R. 56(E) provides, in relevant part:

" * * * When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavit or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him."

Given the requirement of Civ.R. 56(E) ¹ that a party set forth specific facts showing that there is a genuine issue for trial, that party must so perform if he is to avoid summary judgment. State ex rel. Garfield Hts. v. Nadratowski (1976), 46 Ohio St.2d 441, 442-43, 349 N.E.2d 298. Unsupported allegations in the pleadings do not suffice to necessitate the denial of a summary judgment. The principal function of Civ.R. 56(E) is to enable movement beyond allegations in the pleadings, and to analyze the evidence so as to ascertain whether an actual need for a trial exists. ²

The appositeness of rendering a summary judgment hinges upon the tripartite demonstration: (1) that there is no genuine issue as to any material fact; (2) that the moving party is entitled to judgment as a matter of law; and (3) that reasonable minds can come to but one conclusion, and that conclusion is adverse to the party against whom the motion for summary judgment is made, who is entitled to have the evidence construed most strongly in his favor.

The burden of showing that no genuine issue exists as to any material fact falls upon the moving party in requesting a summary judgment. ³ Construing the evidence most favorably to appellants, reasonable minds could only conclude that appellants had presented no case for recovery from appellees. On the evidence presented with these motions...