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Albright v. University of Toledo9/18/2001
nce of genuine issues of material fact as to the essential elements of the nonmoving party's claims. Dresher v. Burt (1996), 75 Ohio St.3d 280, 293. The movant must point to some evidence in the record of the type listed in Civ.R. 56(C) in support of his motion. Id. Once this burden is satisfied, the nonmoving party has the burden, as set forth in Civ.R. 56(E), to offer specific facts showing a genuine issue for trial. Id. The nonmoving party may not rest upon the mere allegations and denials in the pleadings but instead must point to or submit some evidentiary material that shows a genuine dispute over the material facts exists. Henkle v. Henkle (1991), 75 Ohio App.3d 732, 735.
To survive a properly supported motion for summary judgment in a negligence action, a plaintiff must establish that genuine issues of material fact remain as to whether: (1) the defendant owed a duty of care; (2) the defendant breached the duty of care; and (3) as a direct and proximate result of the defendant's breach, the plaintiff suffered injury . Texler v. D.O. Summers Cleaners & Shirt Laundry Co. (1998), 81 Ohio St.3d 677, 680; Strother v. Hutchinson (1981), 67 Ohio St.2d 282. If a defendant points to evidence illustrating that the plaintiff will be unable to prove any one of the foregoing elements, the defendant is entitled to judgment as a matter of law. See Feichtner v. Cleveland (1994), 95 Ohio App.3d 388, 394; Keister v. Park Centre Lanes (1981), 3 Ohio App.3d 19.
Appellants argue in their first assignment of error that the trial court erred in determining that the university had no duty to protect Matthew from the dangers associated with crossing Douglas Road. "In every instance, before negligence can be predicated of a given act * a duty to the individual complaining [must be found], the observance of which would have averted or avoided the injury ." Palsgraf v. Long Island R.R. Co. (1928), 248 N.Y. 339, 342. Thus, whether a defendant owes a plaintiff a duty is a fundamental aspect of establishing actionable negligence, and if there is no duty or obligation of care, no legal liability may arise from the negligent act. Jeffers v. Olexo (1989), 43 Ohio St.3d 140, 142. Defining the duty owed to a particular plaintiff, therefore, is of utmost importance in negligence cases.
A "duty" is an obligation imposed by law on one person to act for the benefit of another person due to the relationship between them. Berdyck v. Shinde (1993), 66 Ohio St.3d 573, 578 (citing Prosser, Law of Torts [5 Ed.1984] 356, Section 53). When risks and dangers inherent in the relationship or incident may be avoided by the obligor's exercise of care, an obligor who fails to do so will be liable to the other person for injuries proximately resulting from those risks and dangers if the injuries were reasonably foreseeable. Id.
Whether a duty of due care is owed to a particular plaintiff depends upon whether the defendant should have foreseen that his conduct would likely cause a person in the plaintiff's position harm. Texler, supra, at 680. The law limits liability in negligence to those risks which a reasonably prudent person would have anticipated as a result of his conduct. See Palsgraf, supra, at 344. An injury is foreseeable if "a reasonably prudent person would have anticipated that an injury was likely to result from the performance or nonperformance of an act." Menifee v. Ohio Welding Products, Inc. (1984), 15 Ohio St.3d 75, 77; see, also, Littleton v. Good Samaritan Hospital & Health Ctr. (1988), 39 Ohio St.3d 86, 92. A person ordinarily possesses no duty to prevent against those risks which are unforeseeable or improbable. See Jeffers, supra, at 143. Further, the defendant need not "actually anticip
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