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Cade v. Cleveland Regional Transit Authority11/14/1991
Plaintiff-appellant, Willie Cade, appeals from the judgment of the Cuyahoga County Court of Common Pleas which granted summary judgment on behalf of defendant-appellee, Greater Cleveland Regional Transit Authority.
The appellant's appeal is not well taken.
I. THE FACTS
A. THE DEATH OF THE APPELLANT'S WIFE
On May 31, 1985, Carol Cade, the wife of the appellant, was waiting at the East 79 Street Rapid Station platform for a rapid train. At approximately 12:56 p.m., Carol Cade was shot to death by an unknown individual.
B. THE APPELLANT'S COMPLAINT FOR WRONGFUL DEATH
On May 30, 1986, the appellant filed a complaint in the Cuyahoga County Court of Common Pleas based upon the claim of the wrongful death of Carol Cade. On October 2, 1987, however, the complaint was voluntarily dismissed without prejudice by the appellant pursuant to Civ. R. 41(A)(2).
C. THE APPELLANT'S REFILED COMPLAINT FOR WRONGFUL DEATH
On August 1, 1988, the appellant refiled his complaint in the Cuyahoga County Court of Common Pleas pursuant to the savings statute as contained in R.C. 2305.19. Again, the appellant in his complaint alleged the wrongful death of his wife, Carol Cade.
D. THE APPELLEE'S MOTION FOR SUMMARY JUDGMENT
On June 7, 1989, the appellee filed a motion for summary judgment on the grounds that no genuine issue of material fact existed for the trier of fact with regard to the appellant's claims and that the appellee was entitled to summary judgment as a matter of law. On August 2, 1989, the appellant filed his brief in opposition to the appellee's motion for summary judgment.
E. THE TRIAL COURT RECONSIDERS AND GRANTS THE APPELLEE'S MOTION FOR SUMMARY JUDGMENT
On August 28, 1989, the trial court denied the appellee's motion for summary judgment. On January 3, 1990, the appellee filed a motion for reconsideration of the appellee's motion for summary judgment as denied by the trial court on August 28, 1989. On February 1, 1990, the trial court reconsidered the appellee's motion for summary judgment and upon reconsideration entered summary judgment on behalf of the appellee.
F. THE APPELLANT'S TIMELY APPEAL
Thereafter, the appellant timely brought the instant appeal from the judgment of the trial court which granted summary judgment on behalf of the appellee.
II. THE SOLE ASSIGNMENT OF ERROR
The appellant's sole assignment of error is that:
"THE TRIAL COURT ERRED IN GRANTING THE DEFENDANT, GREATER CLEVELAND RAPID TRANSIT AUTHORITY'S MOTION FOR SUMMARY JUDGMENT BECAUSE OHIO REVISED CODE SECTION 2744.01 ET. SEQ. DOES NOT PROVIDE GOVERNMENTAL IMMUNITY TO A RAPID TRANSIT AUTHORITY."
A. ISSUE RAISED: TRIAL COURT ERRED IN GRANTING APPELLEE'S MOTION FOR SUMMARY JUDGMENT SINCE A REGIONAL TRANSIT AUTHORITY IS NOT A POLITICAL SUBDIVISION
The appellant, in his sole assignment of error, argues that the trial court erred in granting the appellee's motion for summary judgment. Specifically, the appellant argues that the appellee was not entitled to judgment as a matter of law since the appellee was not a political subdivision which was entitled to sovereign immunity pursuant to the application of R.C. Chapter 2744.
The appellant's sole assignment of error is not well taken.
B. STANDARD OF REVIEW FOR A MOTION FOR SUMMARY JUDGMENT
Civ. R. 56(C), which deals with motions for summary judgment, provides that:
" * Summary judgment shall be rendered forthwith if the pleading, depositions, answers to interrogatories, written
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