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Bozeman v. Wendy's International8/21/2001
y the first prong of the above test--what actually caused him to fall, i.e. what, if anything, was the "instrumentality," and whether solely defendant controlled it. Accordingly, res ipsa loquitur is not appropriate given the posture of this case.
Therefore, the tenth assignment of error is also overruled.
Finally, we reach the merits of appellant's various arguments in support of his contention that the trial court erred in granting summary judgment to Wendy's. The respective arguments are incorporated into assignments of error two, three, four, five, six and nine.
Before addressing the merits of appellant's remaining arguments, we set forth the well-established standards by which we are bound in reviewing summary judgment cases in general.
Civ.R. 56, which is set forth above in relevant part, governs summary judgment, a procedural device designed to terminate litigation where a resolution of factual disputes is unnecessary. In other words, in granting summary judgment, the trial judge determines that no trial is necessary because there exist only questions of law.
Appellate review of summary judgment motions is de novo. Helton v. Scioto Cty. Bd. of Commrs. (1997), 123 Ohio App.3d 158, 162. "When reviewing a trial court's ruling on summary judgment, the court of appeals conducts an independent review of the record and stands in the shoes of the trial court. *" Mergenthal v. Star Banc Corp. (1997), 122 Ohio App.3d 100, 103.
In addressing the appropriateness of rendering a Civ.R. 56 summary judgment, the Supreme Court of Ohio in Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64, 66, set forth the well-established initial requirements: (1) there is no genuine issue as to any material fact; (2) the movant is entitled to judgment as a matter of law; and, (3) reasonable minds can come to but one conclusion, and that conclusion is adverse to the party against whom the motion is made, the non-movant being entitled to have the evidence construed most strongly in his favor. See, also, State ex rel. Gary v. State Emp. Relations Bd. (1997), 78 Ohio St.3d 181, 183.
Significantly, as this court recently reiterated in a similar slip-and-fall case, " * motion for summary judgment first forces the moving party to inform the court of the basis of the motion and to identify portions in the record which demonstrate the absence of a genuine issue of material fact." Nienhaus v. The Kroger Co. (June 14, 2001), Franklin App. No. 00AP-1083 (emphasis added), citing Dresher v. Burt (1996), 75 Ohio St.3d 280. If, and only if, the moving party makes that initial showing, the nonmoving party then must produce evidence on any issue for which the party bears the burden of production at trial. Wing v. Anchor Media, Ltd. of Texas (1991), 59 Ohio St.3d 108, paragraph three of the syllabus.
Defense counsel here acknowledges the state of the law in slip-and-fall cases such as these. With respect to the duty of care owed by Wendy's to appellant in this case, we again quote Nienhaus, supra, at 4:
It is well-settled that a shopkeeper owes its patrons, as business invitees, a duty to exercise ordinary or reasonable care in maintaining their premises in a reasonably safe condition "so that its customers are not unnecessarily and unreasonably exposed to danger." Paschal v. Rite Aid Pharmacy, Inc. (1985), 18 Ohio St.3d 203, citing Campbell v. Hughes Provision Co. (1950), 153 Ohio St. 9. However, the Ohio Supreme Court made it plainly clear that a shopkeeper is not an insurer of the patron's safety against any danger. Id. The court stated "a shopkeeper is under no duty to protect business invitees from dangers 'which are know
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