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Bozeman v. Wendy's International8/21/2001
found appellant's evidence insufficient for purposes of Civ.R. 56(C), it should have treated Wendy's "attachment" exactly the same. The "attachment" does not satisfy Civ.R. 56 and, therefore, the trial court erred in granting Wendy's motion for summary judgment.
In the "conclusion" portion of the trial court decision, at page 13, the court stated:
The Court finds that no duty was owed or breached by Defendant. It also finds that Defendant was not the cause of Plaintiff's fall. Therefore, three of the essential elements to Plaintiff's claim of negligence cannot be met. Construing the evidence before the Court in a light most favorable to Plaintiff, the Court finds that no genuine issue of material fact exists as to whether or not Defendant exercised reasonable care in keeping its premises safe for business invitees. [Emphasis added.]
Initially, we note that this conclusory paragraph is internally inconsistent. The first sentence is wrong in stating that "no duty was owed;" a business such as Wendy's certainly owes its patrons a duty, as discussed above. The final emphasized language ultimately reflects a correct statement of the duty owed a business invitee. The second sentence is also problematic; it reflects a premature factual finding by the court. Indeed, a reading of the trial court's decision in its entirety reveals that the "evidence," such as it was, was considered in a light most favorable to Wendy's, the movant. Such an analysis was wrong, given the procedural posture of the case.
For the same reason the trial court disallowed consideration of appellant's "exhibits" as violative of Civ.R. 56(C), the trial court erred as a matter of law in granting summary judgment to Wendy's, which also failed to comply with Civ.R. 56 and the case law interpreting the rule. Accordingly, those assignments of error challenging the trial court's grant of summary judgment to Wendy's are sustained to the extent indicated.
Accordingly, to the extent they challenge the trial court's grant of summary judgment to Wendy's, assignments of error two, three, four, five, and six are sustained.
In summary, assignments of error seven, eight and ten are overruled. To the extent indicated herein, the first, second, third, fourth, fifth, sixth, and ninth assignments of error are sustained.
This cause is reversed and remanded for proceedings consistent with this opinion.
Judgment reversed and cause remanded.
BRYANT, P.J., and PETREE, J., concur.
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