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Goolsby v. Family Foods2/12/2004
of no evidentiary value. Moreover, a photocopy of a lighter is not sufficient to establish that it is the precise lighter used by appellant on the day of the incident.
. Appellant failed to establish that when the lighter left the control of Family Foods, it did not conform to a representation made by Family Foods, nor did appellant establish that representation and the failure to conform were a proximate cause of harm. As previously stated, appellant failed to provide the lighter for examination or a receipt from Family Foods. In addition, appellant failed to establish that the lighter at issue did not conform when it left the control of Family Foods.
. Accordingly, appellant's second, third, and fourth assignments of error are overruled.
IV.
. Appellant's fifth assignment of error states the following: "The trial court erred to the prejudice of the plaintiff/appellant when it failed to acknowledge that defendant/appellee Family Foods has breached the implied warranty of fitness, implied warranty of merchantability and breached its contract."
. As previously indicated, the appellant never produced a store receipt indicating that the lighter was purchased at Family Foods, nor did the appellant ever produce the actual lighter at issue. Appellant failed to present sufficient evidence that the defective lighter was purchased from Family Foods, therefore eliminating the need to further analyze an implied warranty or breach of contract issue.
. Appellant's fifth assignment of error is overruled.
. Based upon the above, we find that Family Foods was entitled to judgment in its favor as a matter of law because no genuine issue of material fact existed to create any liability against Family Foods. The trial court properly granted Family Food's motion for summary judgment, Family Food was entitled to judgment as a matter of law, and reasonable minds could come to but one conclusion.
. The judgment is affirmed. Judgment affirmed.
MICHAEL J. CORRIGAN, A.J., and DIANE KARPINSKI, J., concur.
It is ordered that appellee recover of appellant its costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the Cuyahoga County Court of Common Pleas to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
ANTHONY O. CALABRESE, JR. JUDGE
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