Hoover v. Recreation Equipment Corp., 89-CV-1896.
| Decision Date | 08 March 1991 |
| Docket Number | No. 89-CV-1896.,89-CV-1896. |
| Citation | 792 F. Supp. 1484 |
| Parties | Jacob A. HOOVER, et al., Plaintiffs, v. RECREATION EQUIPMENT CORP., et al., Defendants. |
| Court | U.S. District Court — Northern District of Ohio |
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Eugene G. Godward, Lawrence Comanor, Comanor & Godward, Cuyahoga Falls, Ohio, for plaintiffs.
Mark S. Yacano, Phillip J. Campanella, Calfee, Halter & Griswold, Cleveland, Ohio, for Recreation Equipment Corp., Donald C. Wright, Joan S. Wright, Charles T. Norton, Jr., Marylee Norton and Industrial Metal Craft, Inc.
Pamela Nagle Hultin, Thompson, Hine & Flory, Cleveland, Ohio, Kevin J. Breen, Thompson, Hine & Flory, Akron, Ohio, for Ultra Play Systems, Inc.
The plaintiffs in this products liability cause of action are Jacob A. Hoover, a minor, and his mother and duly appointed guardian Susan L. Hinton. The defendants are: (1) Recreation Equipment Corporation (REC) an Indiana corporation; (2) Ultra Play Systems (Ultra Play), an Indiana corporation; (3) Industrial Metal Craft Corporation (Industrial); (4) Donald C. Wright; and (5) Charles T. Norton.
The court has jurisdiction over this cause of action pursuant to 28 U.S.C. § 1332, diversity of citizenship. Currently before the court are four motions for summary judgment. Two of those motions were filed by Ultra Play and are the subject of this order. With regard to the third and fourth motions, they are motions to dismiss or in the alternative motions for summary judgment filed by (1) Industrial and REC; and (2) Donald Wright and Charles Norton individually. The court will stay ruling on the third and fourth motions pending the imminent completion of certain discovery.
Many of the facts in this case pertain specifically to the different issues which have been raised and which will be examined in some detail. Accordingly, the court will give only a brief, general account of the facts at this point in the opinion.
On April 5, 1988, five-year old Jacob Hoover sustained severe injuries when he fell from a sliding board (slide) at the Fort Island Primary School (the school). This accident gave rise to plaintiffs' present claim for damages based on negligence and strict liability.
In 1960 REC manufactured and sold the subject slide to the school. The slide was apparently set in concrete footings on an asphalt playground surface at the school site.
Ultra Play was incorporated in accordance under the laws of Indiana on October 9, 1986, with its principal place of business being located in Anderson, Indiana. In October of 1986, Ultra Play entered into an asset purchase agreement (APA) with REC.
In reviewing a motion for summary judgment, a court must consider the pleadings, related documents, evidence, and all reasonable inferences in a manner most favorable to the non-moving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); Smith v. Hudson, 600 F.2d 60 (6th Cir.1979). Rule 56 provides, in relevant part, as follows:
Three Supreme Court cases have provided guidance as to the nature of the respective burdens allocated under Rule 56. See Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The ultimate burden lies with the non-moving party to show the existence of a genuine issue of material fact. Matsushita, 475 U.S. at 586-87, 106 S.Ct. at 1356 (emphasis supplied). "In our view, the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322, 106 S.Ct. at 2552. The court in Anderson held that Anderson, 477 U.S. at 257, 106 S.Ct. at 2514.
On the other hand, the moving party's burden under Rule 56 is lighter.
Of course, a party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," which it believes demonstrate the absence of a genuine issue of material fact. But unlike the Court of Appeals, we find no express or implied requirement in Rule 56 that the moving party support its motion with affidavits or other similar materials negating the opponent's claim. On the contrary, Rule 56(c) ... suggests the absence of such a requirement.
Celotex, supra, 477 U.S. at 323, 106 S.Ct. at 2553 (emphasis supplied).
The Sixth Circuit Court of Appeals, in Street v. J.C. Bradford and Co., 886 F.2d 1472 (6th Cir.1989) recently reviewed court decisions and commentary regarding the impact of Anderson, Celotex, and Matsushita on summary judgment practice. The court concluded that a "new era" in summary judgment practice has opened in the court system as a result of these opinions.
Scholars and courts are in agreement that a "new era" in summary judgments dawned by virtue of the Court's opinions in these cases ... On the whole, these decisions reflect a salutary return to the original purpose of summary judgments. Over the years, decisions requiring denial of summary judgment if there was even a suggestion of an issue of fact and tended to emasculate summary judgment as an effective procedural device.
The court enunciated the following "new era" principles, among others: as on federal directed verdict motions, the "scintilla" rule applies, i.e., the respondent must adduce more than a scintilla of evidence to overcome the motion; the respondent cannot rely on the hope that the trier of fact will disbelieve the movant's denial of a disputed fact, but must "present affirmative evidence in order to defeat a properly supported motion for summary judgment"; the trial court no longer has the duty to search the entire record to establish that it is bereft of a genuine issue of material fact. Id. at 1479-1480 (footnotes and citations omitted).
In a diversity suit, in personam jurisdiction is determined by the law of the forum state. Worldwide Volkswagen Corp. v. Woodson, 444 U.S. 286, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980); American Greetings Corp. v. Cohn, 839 F.2d 1164, 1167 (6th Cir.1988); In-Flight Devices Corp. v. Van Dusen Air, Inc., 466 F.2d 220, 224 (6th Cir.1972). This court's jurisdiction over the defendant is predicated upon an application of the Ohio Long Arm Statute, Ohio Revised Code § 2307.382. This statute has been construed to be compatible with the due process requirements of the fourteenth amendment to the United States Constitution. American Greetings Corp. v. Cohn, 839 F.2d 1164, 1167 (6th Cir.1988); Didactics Corp. v. Welsh Scientific Co., 291 F.Supp. 890 (N.D.Ohio 1968). Thus the issue before this court is whether the state's jurisdiction may be extended to reach the defendant, consistent with the permissible limits of due process protection under the fourteenth amendment.
It is the plaintiff who must assume the burden of establishing by a preponderance of the evidence that this court has personal jurisdiction over the defendant. This burden is met by showing that due process has been satisfied, i.e., by a showing of some minimum contacts between the defendant and the forum state, such that maintenance of a suit does not offend traditional notions of fair play and justice. Hanson v. Denckla, 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283, (1958); International Shoe Co. v. State, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945).
A distinction is made between "general" jurisdiction and "specific" jurisdiction when analyzing the due-process limits of personal jurisdiction. Third Nat. Bank in Nashville v. WEDGE Group Inc., 882 F.2d 1087, 1089 (6th Cir.1989). With regard to general jurisdiction, a state may exercise personal jurisdiction over the defendant even if the action is unrelated to the defendant's contacts with the state, so long as defendant's contacts with the forum state are "continuous and systematic." Id. See also Perkins v. Benguet Consolidated Mining Co., 342 U.S. 437, 72 S.Ct. 413, 96 L.Ed. 485 (1952). With regard to specific jurisdiction, "a state exercises personal jurisdiction over a defendant in a suit...
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