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Morris v. Children's Hospital Medical Ctr.5/1/1991
Per Curiam.
This cause came on to be heard upon an appeal from the Hamilton County Court of Common Pleas.
Plaintiffs-appellants, Melissa, Barbara and Walter Morris, have taken the instant appeal from the entry of summary judgment for defendants-appelleessChildren's Hospital Medical Center, Ellen Kellogg, M.D., and James Heubi, M.D., on the plaintiffs' complaint to recover damages for an injury to the arm of Melissa Morris allegedly suffered as a result of the negligence of the defendants and their agents. The plaintiffs advance on appeal four assignments of error.
The first, third and fourth "assignments of error" presented by the plaintiffs dissolve into a single challenge to the entry of summary judgment for the defendants. We find this challenge to be well taken in part.
The standard governing the disposition of the defendants' motion for summary judgment is set forth in Civ.R. 56, which provides that a party against whom a claim is asserted may move, with or without supporting affidavits, for summary judgment in his favor on all or any part of the claim. Civ.R. 56(A). A motion for summary judgment may be granted if the court, upon viewing the inferences to be drawn from the underlying facts set forth in the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence and written stipulations of fact in a light most favorable to the party opposing the motion, determines:
(1) that no genuine issue of material fact remains to be litigated;
(2) that the moving party is entitled to judgment as a matter of law; and
(3) that the evidence demonstrates that reasonable minds can come to but one conclusion, and that conclusion is adverse to the party opposing the motion. Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 4 O.O.3d 466, 364 N.E.2d 267; Civ.R. 56(C).
Under Civ.R. 56, the party moving for summary judgment bears the initial burden of informing the trial court of the basis for his motion and of identifying those portions of "the pleading, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence in the pending case, and written stipulations of fact" that demonstrate the absence of a genuine issue of fact for trial. Celotex Corp. v. Catrett (1986), 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265; Mitseff v. Wheeler (1988), 38 Ohio St.3d 112, 526 N.E.2d 798. The moving party bears this burden even on the issues on which the nonmoving party would bear the burden of proof at trial. Mitseff supra.
The rule does not, however, require the moving party to support his motion with affidavits or similar evidentiary material negating the nonmoving party's claim. The moving party may, instead, discharge his responsibility by indicating that the evidentiary material submitted and cognizable on the motion fossummary judgment discloses an absence of evidence to support the nonmoving party's claim. Catrett, supra; Meinze v. Holmes (1987), 40 Ohio App.3d 143, 532 N.E.2d 170. It is then incumbent upon the nonmoving party to set forth, by affidavit or otherwise, "specific facts showing that there is a genuine issue for trial." Civ.R. 56(E); Catrett, supra; Mitseff supra. If, after adequate time for discovery, the nonmoving party fails to make a showing sufficient to establish the existence of an element that is essential to his case and on which he will bear the burden of proof at trial, Civ.R. 56(C) mandates the entry of summary judgment in favor of the moving party, because "there can be `no genuine issue as to any material fact,' since a complete failure of proof concerning an ess
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