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Morris v. Children's Hospital Medical Ctr.5/1/1991
ffs' ordinary negligence claims, we limit our discussion of this challenge to the plaintiffs' malpractice claims and find such challenge to be feckless.
Civ.R. 56(F) provides:
"When Affidavits Are Unavailable. Should it appear from the affidavits of a party opposing the motion for summary judgment that he cannot for sufficient reasons stated present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or discovery to be had or may make such other order as is just."
We find no abuse of discretion in the trial court's failure to refuse the defendants' application for judgment or to order a continuance when the plaintiffs were afforded ample time to conduct discovery and when the affidavit of plaintiffs' counsel submitted in support of the plaintiffs' motion for a continuance did not set forth sufficient reasons for the plaintiffs' failure to present by affidavit facts essential to justify their opposition to the entry of summary judgment for the defendants on the plaintiffs' malpractice claims. See Murphy v. East Akron Community House (1989), 56 Ohio App.3d 54, 564 N.E.2d 742. We, therefore, overrule the plaintiffs' second assignment of error.
Upon our determination that summary judgment was improvidently granted for the defendants on the plaintiffs' claims seeking recovery against the defendants upon a theory of respondeat superior for negligent conduct by the nursing staff, we reverse that portion of the judgment entered below and remand for further proceedings in accordance with law. In all other respects, the judgment of the trial court is affirmed.
Judgment affirmed in part, reversed in part and cause remanded.
UTZ, P.J., SHANNON and HILDEBRANDT, JJ., concur.
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