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Shaffer v. Fite9/20/1993
WALSH, Judge.
Plaintiff-appellant, Janet Shaffer ("appellant"), administrator of the estate of Tony H. Shaffer ("Shaffer"), and defendant-appellant, Kristi N. Fite, appeal a decision of the Brown County Court of Common Pleas that granted summary judgment in favor of defendant-appellee, Marshall Hardyman, in a wrongful death action. The action was brought against Fite and Hardyman by appellansand arose out of a January 17, 1991 vehicular collision on State Route 62 in Brown County.
The record shows that at approximately 10:00 a.m. on January 16, 1991, Shaffer borrowed Hardyman's 1942 Ford Ferguson farm tractor in order to perform work at the farm of Harold Bowman. It is. not disputed that when Hardyman loaned Shaffer the tractor, the vehicle lacked both a slow-moving-vehicle ("SMV") emblem and taillights. Upon receiving the tractor, Shaffer informed Hardyman he would return the tractor at 12:00 noon that same day.
Shaffer failed to return the tractor on January 16, 1991 as promised, prompting Hardyman to visit Shaffer at Bowman's farm at 9:00 a.m. the following morning. At that time, Shaffer told Hardyman he would return the tractor "in a little bit." Nine hours later, while driving the tractor in the darkness south on State Route 62 toward Hardyman's residence, Shaffer was struck in the rear by an automobile operated by Fite. Shaffer died as a result of injuries sustained in the collision.
Appellant thereafter initiated the instant action. In response, Fite filed a cross-claim against Hardyman. On October 29, 1992, Hardyman filed a motion for summary judgment with respect to both appellant's complaint and Fite's cross-claim. In an amended entry issued February 26, 1993, the court awarded Hardyman summary judgment, finding no genuine issue of material fact for trial. This appeal followed.
In their only assignment of error, appellant and Fite argue that the court erred in granting Hardyman's motion for summary judgment. For the reasons that follow, we agree and reverse the trial court's ruling.
It is well established in Ohio that summary judgment may only be granted when the following three factors have been established:
" '* * * (1) that there is no genuine issue as to any material fact; (2) that the moving party is entitled to judgment as a matter of law; and (3) that reasonable minds can come to but one conclusion, and that conclusion is adverse to the party against whom the motion for summary judgment is made, who is entitled to have the evidence construed most strongly in his favor.'" Bostic v. Connor (1988), 37 Ohio St.3d 144, 146, 524 N.E.2d 881, 884, quoting Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64, 66, 8 O.O.3d 73, 74, 375 N.E.2d 46, 47. See, also, Civ.R. 56(C).
The burden of showing that no genuine issue exists as to any material fact falls upon the party moving for summary judgment. Toledo's Great Eastern Shoppers City, Inc. v. Abde's Black Angus Steak House (1986), 24 Ohio St.3d 198, 201-202, 24 OBR 426, 428-430, 494 N.E.2d 1101, 1103-1104.
The complaint filed by appellant sounds in negligence. To recover in a negligence action, it is incumbent upon a plaintiff to show (1) that the defendant had a duty, recognized by law, requiring him to conform his conduct to that standard; (2) that the defendant failed to conform his conduct to that standard; and (3) that the defendant's conduct proximately caused the plaintiff to sustain a loss or injury. Brauning v. Cincinnati Gas & Elec. Co. (1989), 54 Ohio App.3d 38, 40, 560 N.E.2d 811, 813-814.
Our analysis begins with the recognition that R.C. 4513.02(A) defines the duty that
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