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Bozeman v. Wendy's International8/21/2001
f any, knowledge employees of Wendy's had of the soap or other substance before the fall occurred. In the words of appellant's initial complaint, he alleged:
On February 6, 1998, at approximately 12:30 p.m., [appellant] entered Wendy's Restaurant located at 257 East Broad Street, Franklin County, City of Columbus, Ohio and as the [appellant] entered the customers' restroom at Wendy's, hand soap that had dripped from the soap dispenser onto the floor caused the [appellant] to slip and fall[,] resulting in emergency long[-]term hospitalization, loss wages , job loss, extreme pain and suffering of the mind and body. [Complaint at 1.]
His very concise, two-page complaint culminated with a prayer for relief seeking damages of at least $1,500,000.
On appeal, appellant's assignments of error, although some tend to overlap or otherwise become absorbed into other issues, fall generally into three categories: (1) a ruling on a procedural issue preceding the trial court's grant of summary judgment; (2) issues related to the trial court's treatment of certain evidence offered by appellant; and, (3) for several enumerated reasons, the trial court's grant of summary judgment itself.
By his first assignment of error, appellant argues that the trial court erred when it "failed to defer ruling on summary judgment motion to allow discovery." In essence, appellant contends that the trial court erred in denying him additional time to conduct discovery for purposes of responding to Wendy's motion for summary judgment. Phrased somewhat differently, for purposes of appellate review, the trial court purportedly abused its discretion in overruling appellant's October 2000 attempt to pursue additional discovery via a motion to compel. As indicated infra, appellant believed that defense counsel failed to comply fully with appellant's discovery requests, including "evasive or incomplete answers." With respect to Wendy's claims that much of the information sought was protected by "privilege," appellant responded by filing a document specifically asking for an in camera inspection of those materials.
We look first to Civ.R. 56(F), which provides, in relevant part:
Should it appear from the affidavits of a party opposing the motion for summary judgment that the party cannot for sufficient reasons stated present by affidavit facts essential to justify the party's opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or discovery to be had or may make such other order as is just. [Emphasis added.]
Trial judges have broad discretionary authority over most discovery proceedings and, thus, as indicated above, our review of this issue is limited to ascertaining whether the trial court abused its discretion. It is well-established that such a standard of review mandates affirming a trial court's decision absent a showing that the judge acted unreasonably, unconscionably or arbitrarily. See, e.g., Berk v. Matthews (1990), 53 Ohio St.3d 161, 169.
In Glimcher v. Reinhorn (1991), 68 Ohio App.3d 131, motion to certify overruled (1991), 62 Ohio St.3d 1475, the court addressed an analogous Civ.R. 56(F) issue. This court stated, at 137-138:
* Civ.R. 56(F) provides a method by which a party may seek a continuance on a motion for summary judgment so that he may obtain affidavits opposing the motion or conduct discovery relevant to it. In paragraph two of the syllabus in Gates Mills Investment Co. v. Pepper Pike (1978), 59 Ohio App.2d 155 *, the court recognized this principle, holding:
"If a party opposing a motion for summary judgment cannot present by a
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