Sharon Stibley v. Rose Zimmerman
| Decision Date | 26 August 1998 |
| Docket Number | 98-LW-4091,97 CA 51 |
| Parties | SHARON STIBLEY, Plaintiff-Appellant v. ROSE ZIMMERMAN, et al., Defendant-Appellee Case |
| Court | Ohio Court of Appeals |
COUNSEL FOR APPELLANT: Thomas S. Hodson, 16 West State Street Athens, Ohio 45701.
COUNSEL FOR APPELLEE: Douglas P. Holthus, 505 South High Street Columbus, Ohio 43215-5643.
DECISION
This is an appeal from an Athens County Common Pleas Court judgment granting summary judgment in favor of T.C.K.S Inc., defendant below and appellee herein.
Sharon Stibley, plaintiff below and appellant herein, assigns the following errors.
On November 8, 1996, appellant was walking in Athens on the west side of Richland Avenue. Appellant walked in a northerly direction. As she approached the McDonald's restaurant located on the west side of Richland Avenue, she noticed a car beginning to exit the McDonald's drive-thru. Appellant saw the car pull forward and stop. The driver of the car, Rose E. Zimmerman ("Zimmerman"), planned on making a right-hand turn. Before making the turn, Zimmerman checked to ensure that cars to her left (cars traveling southbound) were far enough away to allow her to proceed safely. In doing so, Zimmerman edged her vehicle over the sidewalk. With her car Ln this position, Zimmerman had an unobstructed view both to the Left and to the right.
As appellant approached the intersection of the sidewalk and Zimmerman's vehicle, appellant deduced that the car was going to make a right-hand turn out of the McDonald's driveway. Prior to attempting to cross in front of Zimmerman's vehicle, appellant slowed her walking pace to ensure that she could cross in a safe manner. Appellant, believing that she could safely cross in front of the vehicle, continued walking, while at the same time, Zimmerman determined that the southbound traffic was clear enough to allow her to safely turn right. As Zimmerman began to turn, she struck appellant. As a result of the accident, appellant suffered severe injuries.
appellee claimed that the doctrine of res ipsa loquitur is
inapplicable because the instrumentality that caused appellant's
injuries, the Zimmerman vehicle, was not under appellee's
exclusive control and management.
In support of its motion, appellee referred the trial court
to appellant's deposition and Zimmerman's deposition. Appellant
acknowledged in her deposition that Zimmerman would not have
struck appellant if Zimmerman had Looked to her right. Zimmerman
stated in her deposition that she had a clear line of vision of
pedestrian traffic to her right and that only a telephone pole
blocked her line of vision to her left.
On September 22, 1997, appellant filed a memorandum contra appellee's motion for summary judgment asserting that several genuine issues of material fact remain as to whether appellee was negligent. Appellant claimed that the location of Zimmerman's vehicle immediately prior to the accident is a disputed fact. Appellant also argued that whether appellee owed her a duty and whether appellee's landscaping design caused Zimmerman to hit appellant remain disputed.
To support her arguments, appellant referred the trial court to her affidavit. In her affidavit, appellant asserted that appellee's landscaping design forced Zimmerman to pull over the sidewalk so that she could see the traffic coming from the left. Appellant stated that if Zimmerman did not have to pull so far forward to see the traffic, Zimmerman would have had more time to react to suddenly seeing a pedestrian on the sidewalk. Furthermore, appellant stated that on the occasions that she has frequented the McDonald's restaurant, the landscaping obstructs her view of traffic to the left.
On October 8, 1997, the trial court granted appellee's motion for summary judgment. The trial court reasoned that appellee did not owe appellant a duty of care, and assuming, arguendo, that appellee owed appellant a duty of care, appellee did not breach that duty. The trial court further concluded that even if appellee had breached its duty of care, appellee did not proximately cause appellant's injuries. Finally, the trial court concluded that the doctrine of res ipsa loquitur is not a viable theory because the instrumentality that caused appellant's injuries (Zimmerman's vehicle) was not under appellee's exclusive control.
On October 31, 1997, appellant filed a timely notice of appeal.
Appellant's two assignments of error are interrelated, both addressing the propriety of the trial court's grant of summary judgment in appellee's favor. We will, therefore, address the two assignments of error together.
When reviewing a trial court's decision regarding a motion for summary judgment, an appellate court conducts a de novo review. Village of Grafton v. Ohio Edison Co. (1996), 77 Ohio St.3d 102, 105, 671 N.E.2d 241, 245. Accordingly, an appellate court must independently review the record to determine if summary judgment was appropriate and need not defer to the trial court's decision. See Brown v. Scioto Bd. of Commrs. (1993), 87 Ohio App.3d 704, 711, 622 N.E.2d 1153, 1157; Morehead v. Conley (1991), 75 Ohio App.3d 409, 411-12, 599 N.E.2d 786, 788. Accordingly, in determining whether a trial court properly granted a motion for summary judgment, an appellate court must review the standard for granting a motion for summary judgment as set forth in Civ.R. 56, as well as the applicable law. Civ.R. 56(C) provides, in relevant part, as follows:
* * * * Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence in the pending case, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. No evidence or stipulation may be considered except as stated in this rule. A summary judgment shall not be rendered unless it appears from the evidence or stipulation, and only from the evidence or stipulation, 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, that party being entitled to have the evidence or stipulation construed most strongly in the party's favor.
Thus, a trial court may not grant: a motion for summary judgment unless the evidence before the court demonstrates that: (1) no genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the nonmoving party, that conclusion is adverse to the party against whom the motion for summary judgment is made. Vahila v. Hall (1997), 7 Ohio St.3d 421, 429-30, 674 N.E.2d 1164, 1171.
Pursuant to Civ.R. 56, the moving party bears the initial burden of informing the trial court of the basis for the motion, and identifying those portions of the record that demonstrate the absence of a material fact. Vahila, supra; Dresher v. Burt (1996), 75 Ohio St.3d 280, 293, 66,2 N.E.2d 264, 273. The moving party cannot discharge its initial burden under the rule with a conclusory assertion that the nonmoving party has no evidence to prove its case. Kulch v. Structural Fibers, Inc. (1997), 78 Ohio St.3d 134, 147, 677 N.E.2d 308, 318; Dresher, supra. Rather, the moving party must specifically refer to the "pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence in the pending case, and written stipulations of fact, if any," which affirmatively demonstrate that the nonmoving party has no evidence to support the nonmoving party's claims. Civ.R. 56(C); Dresher, supra.
"[U]nless a movant meets its initial burden of establishing that the nonmovant has either a complete lack of evidence or has an insufficient showing of evidence to establish the existence of an essential element of its case upon which the nonmovant will have the burden of proof at trial, a trial court shall not grant a summary judgment."
moving party satisfies its burden, the nonmoving party bears a
corresponding duty to set forth specific facts...
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