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Perotti v. Johnson & Johnson Vision Care12/30/2004
{ } Plaintiff appeals the trial court granting summary judgment in favor of defendants, Johnson & Johnson Vision Care, Inc. and Vistakon. For the reasons that follow, we agree with the judgment of the trial court.
{ } For two consecutive nights in March, 2001, plaintiff borrowed and wore his wife's prescribed ACUVUE contact lenses to bed. When he awoke the second morning, plaintiff had pain in his right eye and went to a hospital emergency room. He was later diagnosed with a corneal ulceration of his right eye.
{ } Plaintiff brought suit against defendants alleging their negligent design, manufacture and/or failure to warn about the ACUVUE lenses, which, he claims, are the proximate cause of his injury .
{ } Defendants filed a motion for summary judgment arguing that plaintiff, a non-prescribed user of their lenses, had no basis to sue them under any theory of negligence or Ohio's products liability statute, R.C. 2307.71 et seq. After the trial court
{ } granted defendants' motion, plaintiff filed this appeal in which he presents one assignment of error:
THE TRIAL COURT ERRED WHEN IT GRANTED DEFENDANTS' MOTION FOR SUMMARY JUDGMENT WHEN DEFENDANTS ARE NOT ENTITLED TO JUDGMENT AS A MATTER OF LAW AND THERE EXISTS A QUESTION OF MATERIAL FACT.
{ } Plaintiff argues that the trial court erred in granting defendants' motion for summary judgment. We disagree.
{ } Under Civ.R. 56, summary judgment is proper when: "(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 party against whom the motion for summary judgment is made, that conclusion is adverse to that party." Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327, 364 N.E.2d 267.
{ } In Dresher v. Burt (1996), 75 Ohio St.3d 280, 662 N.E.2d 264, the Ohio Supreme Court explained each party's burden of proof in a summary judgment action:
A party seeking summary judgment, on the ground that the nonmoving party cannot prove its case, bears the initial burden of informing the trial court of the basis for its motion, and identifying those portions of the record that demonstrate the absence of a genuine issue of material fact on the essential element(s) of the nonmoving party's claims. The moving party cannot discharge its initial burden under Civ.R. 56 simply by making a conclusory assertion that the nonmoving party has no evidence to prove its case. Rather, the moving party must be able to specifically point to some evidence of the type listed in Civ.R. 56(C) which affirmatively demonstrates that the nonmoving party has no evidence to support the nonmoving party's claims. If the moving party fails to satisfy its initial burden, the motion for summary judgment must be denied. However, if the moving party has satisfied its initial burden, the nonmoving party then has a reciprocal burden outlined in Civ.R. 56(E) to set forth specific facts showing that there is a genuine issue for trial, and, if the non-movant does not so respond, summary judgment, if appropriate, shall be entered against the nonmoving party.
Id. at 293.
{ } On appeal, our review of a trial court's decision to grant summary judgment is de novo. Jones v. A-Best Prods. Co., Cuyahoga App. No. 81792, 2003-Ohio-6612.
{ } In the case at bar, defendants moved for summary judgment on each of plaintiff's claims: strict products liability for failure to warn pursuant to R.C. 2307.76, negligent failure to warn, negl
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