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Bozeman v. Wendy's International8/21/2001
n to such invitee or are so obvious and apparent to such invitee that he may reasonably be expected to discover them and protect himself against them.'" Id. at 203-204 (quoting Sidle v. Humphrey , 13 Ohio St.2d 45.)
If such a danger did exist, the question then becomes whether and to what extent Wendy's had notice, actual or constructive, of the hazardous condition. If Wendy's had notice, the issue then becomes whether Wendy's provided adequate warning of the dangerous condition. However, this case never reached the latter portion of the negligence analysis.
Defense counsel and the trial court devoted virtually all of their respective analyses and discussions to a general dissertation of negligence law and the duty of care owed by Wendy's to its patrons. The trial court and counsel for Wendy's merely mentioned the legal burden a movant carries, pursuant to the foregoing case law, in order to prevail on this summary judgment motion. Moreover, defense counsel and the trial court focused primarily upon what appellant apparently would not be able to prove. Appellant argues that Wendy's failed to discharge its initial burden as a movant for summary judgment because it merely made "conclusory assertions that the nonvmoving party has no evidence to prove its case." We agree.
In Castrataro v. Urban (Mar. 7, 2000), Franklin App. No. 99AP-219, unreported, this court spoke to a similar Dresher issue, ultimately concluding that the defendants-movants failed to comply with Civ.R. 56 and Dresher. The Castrataro court stated:
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.; Vahilla v. Hall (1997), 77 Ohio St.3d 421 *. 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 *; Vahilla, supra, at 430 *; Civ.R. 56(E). [Emphasis added.]
In the instant case, the trial court relied upon Wendy's "attachment," "Exhibit A," to its motion for summary judgment. This "attachment" is a portion of what purports to be a transcript of appellant's deposition, which, again, is not a part of the record. (Decision at 9-10.) The "attachment" comprises seventeen pages, variously numbered from page fourteen through eighty-four. The "attachment" does not identify either the party asking or answering questions. The "attachment," again, is not appended in its entirety; it begins with a question which was presumably preceded by other questions; it ends at page eighty-four in a similar disjunctive manner. The "attachment" is not file-stamped, certified, or otherwise authenticated in any manner. To a limited extent, defense counsel acknowledges before us the potential problems with its "evidence." However, defense counsel goes on to deem any such problems "harmless," notwithstanding the fact that this "attachment" comprised the entirety of its "evidence." Because this is a summary judgment case, the usage of "harmless" is clearly inappropriate here.
For the same reasons the trial court properly
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