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Bozeman v. Wendy's International8/21/2001
he alternative, defense counsel asked that the motion and its attached memorandum be considered a reply memorandum to the summary judgment motion.
Counsel for Wendy's also responded to Mr. Bozeman's motion to compel discovery, informing the court that its alleged incomplete responses to Mr. Bozeman's discovery requests were based upon, inter alia, issues related to privilege and the fact that Wendy's was not the entity which would have in its possession the information sought.
In a decision rendered December 29, 2000, and journalized pursuant to an entry filed January 25, 2001, the trial court ultimately granted Wendy's motion for summary judgment. The court ultimately determined, inter alia, that Mr. Bozeman had been a business invitee at the time of his fall, but that Wendy's had not breached its duty of care.
With respect to the evidence submitted by Mr. Bozeman, the court determined that the evidentiary material was not in a proper form which could be considered in ruling on a summary judgment motion.
Additional details of the trial court's decision are addressed at length below in our discussion of the pertinent assignments of error.
Nathan Bozeman ("appellant") has pursued a timely appeal of the trial court's decision granting Wendy's summary judgment. He has assigned ten errors for our consideration:
1) Court erred when it failed to defer ruling on summary judgment motion to allow discovery.
2) Court erred when it granted summary judgment motion not adequately supported by attached affidavit and whose evidence in support of motion was legally insufficient.
3) Court erred when it did not consider evidence submitted in connection with summary judgment in a light favorable to nonmoving party.
4) Court erred when it did not consider "all appropriate materials,["] and view those materials in a light favorable to non-movant.
5) Court abused its discretion when it granted Motion For Summary Judgment when there existed a genuine dispute about facts for which a reasonable jury could have found for the plaintiff.
6) Court abused its discretion when it "tried a fact issue."
7) Court abused its discretion when it and caused prejudicial harm when it did not apply Conditional Relevance Standard to plaintiff's documentary evidence.
8) Court abused its discretion when it failed to apply Evid.R. 103(A) to defendant's objection to plaintiff's document evidence which requires that objections be specific, and when it failed to consider the same exhibits when offered as proof as addendum to Joint Final Pretrial Statement.
9) Court abused its discretion when it considered as legally acceptable evidence in Defendant[']s Motion For Summary Relief , the plaintiff's deposition transcript/video tape which had not been filed with the court or otherwise authenticated.
10) Did the court abuse its discretion by not applying res ipsa loquitur[?]
As an overview of some of the pertinent facts of this case, the record reveals that prior to the incident at Wendy's, appellant walked with the help of a cane as the result of a previous back injury. When he fell on the restroom floor at Wendy's, the fall apparently happened when his cane slipped on something on the floor. He could not identify the substance on which his cane slipped; however, he was purportedly told by a Wendy's manager who inspected the floor shortly after the fall that the substance was liquid soap. There were apparently no independent witnesses to the actual fall. Appellant had no idea how long the substance had been on the floor and could not say what, i
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