Corey Fitz and Dee Fitz v. Owens-Illinois, 91-LW-2829
| Decision Date | 28 June 1991 |
| Docket Number | 91-LW-2829,L-90-218 |
| Parties | Corey Fitz and Dee Fitz, Appellants v. Owens-Illinois, Appellee Court of Appeals |
| Court | Ohio Court of Appeals |
Robert J. Hunter, Jr., for appellants.
Donna B. Powers, for appellee.
This case is on appeal from the June 7, 1990 judgment of the Lucas County Court of Common Pleas, which granted appellee's motion to strike the affidavit of appellants' expert granted summary judgment to appellee, and dismissed appellants' complaint. On appeal, appellants asserts the following assignments of error:
The following are the undisputed facts in this case taken from the deposition of appellant Corey Fitz. On February 5, 1987 Fitz, a truck driver, was on the premises of appellee, Owens-Illinois, between 10:00 a.m and 11:00 a.m. to pick up a load of fifty-five gallon drums. After parking his truck at the loading dock, Fitz walked up a six-step flight of stairs into the adjacent building. Fitz had been at the facility many times in the past. The premises appeared to Fitz to be the same as always. Although the temperature was near freezing, the sun was shining and the roads and driveway were dry. When ascending the stairs into the building, Fitz did not notice any ice, salt, or defect in the stairs. One to two hours later, Fitz exited the building by way of the same staircase. At or near the top of the stair case, Fitz fell. Fitz remembered holding onto the railing, spinning in the air, and coming to rest at the bottom of the stairs, face down. Fitz could not determine what caused him to slip. As a result of the fall, Fitz suffered severe injury.
Fitz and Dee Fitz, Fitz's spouse, filed this lawsuit against appellee. Fitz asserted that appellee negligently failed to maintain and repair the stairway or to warn of its dangerous condition. Dee Fitz claimed a loss of consortium due to Fitz's injury. Appellee sought summary judgment in this case arguing that there was no genuine issue as to any material facts and that it was not negligent. Appellants responded to the motion for summary judgment arguing that there was a genuine issue as to whether appellee breached its duty of care. Appellants also filed two affidavits to support their brief in opposition to the motion for summary judgment.
The first affidavit filed by appellants was that of Francis H. Carr, Jr., a professional engineer with sixteen years of experience as a Snow and Ice Control Engineer for the Massachusetts Department of Public Works. Carr stated that he had examined twenty-five photographs of the area around the stairs where Fitz fell, Fitz's deposition, and climatological data from the Toledo Airport. Carr attested that, in his opinion, nearly-invisible ice could have formed on the staircase as a result of other drivers and individuals tracking water onto the stairs after walking over a grassy area at the bottom of the stairs. Based upon the weather conditions at the time of the fall, Carr believed that this moisture could have frozen overnight. The second affidavit was that of another truck driver who was sent to pick up Fitz's truck. The driver stated he arrived at the facility between 3:00 p.m. and 4:00 p.m. on the day of the fall. Because he had been told about Fitz's fall, the driver examined the stairs and saw moisture spots, partially melted ice, and undissolved ice melter on the horizontal portion of the stairs.
Appellee objected to both affidavits. Appellee objected to Carr's affidavit on several grounds, including that Carr's opinions were not based on personal observations or evidence in the record. The court held in its June 7, 1990 journal entry that Carr's affidavit be stricken from the record because Carr's opinions were based upon photographs and weather reports which were not authenticated and attached to his affidavit. The court overruled appellee's objections to the truck driver's affidavit.
Prior to the court's ruling, appellant filed, on April 26, 1990, the affidavit of the personal investigator who had photographed the scene of the fall on December 7, 1987. The photographer stated that the photographs showed the concrete crumbling at that time.
The court granted summary judgment to appellee in its June 7, 1990 judgment entry holding that appellants had failed to demonstrate that Fitz's fall was due to an unnatural accumulation of ice caused by the state of the concrete. In addition, the court held that appellants had presented sufficient evidence to demonstrate that neither party was aware of the defects in the step at the time Fitz fell. Since there was no dispute in material facts, the court concluded that reasonable minds could only conclude that appellee exercised reasonable care to maintain the steps in a safe condition.
On appeal, appellants first argue that the court erred when it ordered the affidavit of Carr to be stricken. Appellants argue that the Civil Rules of Procedure do not require that the photographs and weather reports utilized by Carr in formulating his expert opinion be authenticated and attached to his affidavit. Furthermore, appellants argue that the weather report is a public record and, therefore, is admissible evidence pursuant to Evid. R. 803(8)(b). Appellants argue that the court should have held a hearing to determine the authentication of the photographs and weather report. Finally, appellants argue that if the affidavit had been allowed, summary judgment would not have been proper.
Civ. R. 56(C) provides that summary judgment may be based upon the evidence contained in any "pleading, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence ***, and written stipulations of fact ***." The rule further provides that "[n]o evidence or stipulation may be considered except as stated in this rule." The court need not consider any evidence which is not listed in Civ. R. 56(C). Kramer v. West American Ins. Co. (Oct. 6, 1982), Hamilton App. Nos. C-810829 and C-810891, unreported. Any other documentary evidence is reviewable by the court only if it is part of a properly drafted affidavit. Biskupich v. Westbay Manor Nursing Home (1986), 33 Ohio App. 3d 220, 222.
Civ. R. 56(E) sets forth the requirements as to the form an affidavit must take to be considered by the court. The rule provides that the (Emphasis added.)
Since an affidavit's purpose is to demonstrate that there is a genuine issue of material fact requiring a need for trial the affidavit must set forth specific facts and not merely legal conclusions or opinions. Smythy v. Miguel (Oct. 11, 1990), Cuyahoga App. No. 59274, unreported. The affidavit may contain a lay opinion if the requirements of both Civ. R. 56(E) and Evid. R. 701 are satisfied. The lay opinion must be made a part of a properly-drafted affidavit which satisfies the three elements listed in Civ. R. 56(E) and be an admissible lay opinion under Evid. R. 701. Tomlinson v. Cincinnati (1983), 4 Ohio St. 3d 66, 67-68. By analogy, an affidavit may include an expert's opinion if Civ. R. 56(E) and Evid. R. 702-705 are satisfied. Ambulatory Health Care Corp. v. Schulz (May 30, 1991), Cuyahoga App. No. 58595, unreported and Sizemore v. Dresser Indus., Inc. (Dec. 28, 1990), Marion App. No. 9-88-55, unreported. Therefore, the affidavit must demonstrate that the affiant's opinion is based on personal knowledge; that the facts contained in the affidavit are admissible evidence; and that the affiant is competent to testify as to the matter stated. Further, the affidavit must include (1) the necessary information from which the court can conclude that the affiant is an expert and that the expert's opinions are needed to assist the trier of fact (Evid. R. 702); and (2) the facts or data upon which the expert basis his opinion, whether such facts or data were perceived by him or-obtained from evidence...
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