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Overcasher v. Northland Cranberries9/20/2004
JUDGMENT: Affirmed
{ } Plaintiff Carol Overcasher appeals a summary judgment of the Court of Common Pleas of Stark County, Ohio, entered in favor of defendant Northland Cranberries, Inc. on her claims for product liability and negligence. Appellant assigns two errors to the trial court:
{ } "I. THE TRIAL COURT ERRED AS A MATTER OF LAW IN GRANTING SUMMARY JUDGMENT BECAUSE THERE IS A GENUINE ISSUE OF MATERIAL FACT AS TO WHETHER APPELLANT, CAROL OVERCASHER, SUSTAINED INJURIES AS THE PROXIMATE RESULT OF CONSUMING APPELLEE, NORTHLAND CRANBERRIES, INC.'S DEFECTIVE PRODUCT.
{ } "II. THE TRIAL COURT ERRED AS A MATTER OF LAW IN DETERMINING THAT THE EMERGENCY ROOM DIAGNOSIS WAS INADMISSIBLE HEARSAY."
{ } The trial court recited the facts in its judgment entry of October 16, 2003. In January 2001, appellant purchased a two-quart plastic jug of Seneca 100% Grape Juice From Concentrate With Added Calcium. Over the course of the following 3 to 5 days, appellant stored the grape juice in her refrigerator and consumed approximately two-thirds of it. On February 2, 2001, appellant "swooshed" the juice remaining in the container, because she knew natural parts of juice sometimes settled to the bottom of the container. Appellant poured herself a glass of juice, but as she swallowed a sip of the juice she felt a scraping sensation in the back of her throat. Appellant examined the bottle and found sharp granules varying in size remaining on the neck of the bottle.
Appellant went to the emergency room complaining of throat pain, and later went to Dr. Steven Ossakow, an Otolaryngologist, because of continued pain in her throat.
{ } Other facts which appear undisputed in the record are that appellant was examined by Dr. Saklecha, an emergency room physician, about a half hour after drinking the juice. Dr. Saklecha diagnosed appellant with laryngeal and esophageal abrasions. The doctor also examined the substance in the juice. Dr. Saklecha made notes of his emergency room examination.
{ } Appellant later had the substance analyzed by American Analytical Laboratories, Inc. The laboratory report stated the substance had four characteristics of talc. Appellee also examined the substance, and argued the substance was tartaric acid, which occurs naturally in grapes and grape juice. Appellee's expert criticized appellant's laboratory tests, and found they were incomplete because they did not positively identify the crystals.
{ } Dr. Ossakow examined appellant about a month after her claimed injury, while appellant was still experiencing painful symptoms. The doctor's examination revealed no evidence of injury, and he offered his opinion that the problems she was experiencing were not due to the grape juice incident, but were the result of acid reflux disease.
{ } Civ. R. 56 states in pertinent part:
{ } "Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence, 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
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