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Bozeman v. Wendy's International8/21/2001
ocuments were: (1) a photocopy of what appears to be a sink and some items above the sink, supposedly the soap dispenser and a mirror; (2) what appear to be typed transcripts of questions and answers, which are neither complete nor otherwise certified or authenticated; and, (3) what purports to be Wendy's policy/procedure practices regarding, inter alia, restroom maintenance. No legally sufficient affidavit or other authentication accompanied these exhibits.
In the trial court's decision granting summary judgment to Wendy's, the court expressly disallowed consideration of appellant's exhibits attached to his responsive memorandum. Citing Civ.R. 56, the trial court summarily rejected appellant's exhibits as improper because appellant "must do this through the use of an affidavit or as otherwise provided by the rule." (Decision at 3.)
Civ.R. 56(C) provides, in pertinent part:
* Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence in the pending case, 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. * 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 the party's favor. * [Emphasis added.]
We agree with the trial court's conclusion that appellant's exhibits, to the extent they lacked any legally sufficient form of authentication, certification, or identification, are not proper materials contemplated by Civ.R. 56(C). See, also, Civ.R. 56(E). The rule specifically lists those items to be considered, and these items were legally insufficient as presented to the trial court.
Accordingly, assignments of error seven and eight are overruled.
In final argument regarding his own "evidence," the tenth assignment of error, appellant argues that the trial court abused its discretion by not applying the rule of res ipsa loquitur, which in common parlance essentially translates to "the thing speaks for itself." In other words, the rule basically allows the trier of fact to draw an inference of negligence, and apply a "but for the negligence of the defendant" type of inquiry.
The trial court relied upon Hake v. Wiedemann Brewing Co. (1970), 23 Ohio St.2d 65, in which the Supreme Court explained:
It is well established by earlier decisions of this court that res ipsa loquitur is a rule of evidence which permits the trier of fact to infer negligence on the part of the defendant from the circumstances surrounding the injury to plaintiff. *
To warrant application of the rule[,] a plaintiff must adduce evidence in support of two conclusions:
(1) that the instrumentality causing the injury was, at the time of the injury, or at the time of the creation of the condition causing the injury, under the exclusive management and control of the defendant; and (2) that the injury occurred under such circumstances that in the ordinary course of events it would not have occurred if ordinary care had been observed. * [Id. at 66-67.]
We agree with the trial court in summarily rejecting this argument, since the rule is inapplicable under the circumstances of this case. Appellant has not yet adduced sufficient evidence to satisf
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