Boye v. Consolidated Stores Corp.3/5/2002
APPEAL from the Franklin County Court of Common Pleas.
Plaintiff-appellant, Adama Boye, appeals from a judgment of the Franklin County Court of Common Pleas granting the summary judgment motion of defendant-appellee, Hy-Tek Material Handling, Inc. ("Hy-Tek").
On June 8, 1997, plaintiff, a warehouse employee of Consolidated Stores Corporation ("Consolidated"), was operating a lift truck in the course of his employment when his left foot became caught between the lift truck and a pillar. According to plaintiff, the incident resulted in serious injury to plaintiff's foot that required several surgeries and continuing treatment for pain. Following the incident, Consolidated, described as a self-insuring employer, paid benefits to plaintiff.
On June 2, 1999, plaintiff filed a lawsuit against, among others, Consolidated, NACCO Materials Handling Group, Inc. ("NACCO"), the manufacturer of the lift truck plaintiff used at the time of his injury, and Hy-Tek , the distributor of the lift truck. Plaintiff demanded compensatory damages in excess of twenty-five thousand dollars and a determination of the amount of money to which Consolidated was subrogated from the other defendants.
On February 5, 2001, Hy-Tek filed a motion for summary judgment that the trial court granted. The remaining claims against Consolidated and NACCO were dismissed after the parties settled them. Plaintiff timely appeals, and assigns a single error:
THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT TO THE DEFENDANT-APPELLANT HY-TEK MATERIALS HANDLING, INC.
An appellate court's review of summary judgment is conducted under a de novo standard. Coventry Twp. v. Ecker (1995), 101 Ohio App.3d 38, 41; Koos v. Cent. Ohio Cellular, Inc. (1994), 94 Ohio App.3d 579, 588. Summary judgment is proper only when the parties moving for summary judgment demonstrate: (1) no genuine issue of material fact exists, (2) the moving parties are entitled to judgment as a matter of law, and (3) reasonable minds could 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 most strongly construed in its favor. Civ.R. 56; State ex rel. Grady v. State Emp. Relations Bd. (1997), 78 Ohio St.3d 181, 183.
Pursuant to Civ.R. 56(C), 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 demonstrating the absence of a material fact. Dresher v. Burt (1996), 75 Ohio St.3d 280, 293. The moving party, however, cannot discharge its initial burden under this rule with a conclusory assertion that the non-moving party has no evidence to prove its case; the moving party must specifically point to evidence of a type listed in Civ.R. 56(C), affirmatively demonstrating that the non-moving party has no evidence to support the non-moving party's claims. Id.; Vahila v. Hall (1997), 77 Ohio St.3d 421, 429. Once the moving party discharges its initial burden, summary judgment is appropriate if the non-moving party does not respond, by affidavit or as otherwise provided in Civ.R. 56, with specific facts showing that a genuine issue exists for trial. Dresher, supra, at 293; Vahila, supra, at 429-430; Civ.R. 56(E). See, also, Castrataro v. Urban (Mar. 7, 2000), Franklin App. No. 99AP-219, unreported.
Although plaintiff's complaint asserted five counts, our analysis is confined to plaintiff's fourth count because plaintiff's memorandum contra Hy-Tek's summary judgment motion admitted plaintiff's specific claim against Hy-Tek, a common law negligence claim, was contained in it. Specifically,
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