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Estate of Barrish v. Ebert9/1/2005
{ } In this appeal, plaintiffs-appellants the Estate of Betty A. Barrish, et al. ("Barrish") appeal from the judgment of the Cuyahoga County Court of Common Pleas which granted the motion for summary judgment of the defendants-appellees Jack Ebert, Kathleen Ebert Viesca, Jack Ebert and Co., and John Paul Ebert, dba Noble Management Co. (collectively referred to as "Ebert"). For the following reasons, we affirm the decision of the trial court. A review of the record reveals the following facts: On December 19, 1999, Betty Barrish attended an open house being held by the Psychobiology Clinic at 2936-2940 Noble Road, Cleveland Heights, Ohio. The Psychobiology Clinic is a tenant in this building, which is owned by Ebert.
{ } Mrs. Barrish was dropped off at the rear entrance of the premises by her husband as he went to park the car. Mrs. Barrish approached the rear entrance of the building and walked into a partially enclosed vestibule outside of the back door of the building. A concrete wheelchair ramp is located inside the vestibule. As Mrs. Barrish was walking up this ramp to enter the building, her left foot slipped on the left edge of the ramp causing her to fall onto the floor on her left side, fracturing her hip.
{ } On November 26, 2003, Barrish filed a complaint in the Cuyahoga County Court of Common Pleas against Ebert alleging personal injury and subsequently, wrongful death, as a result of the fall.
{ } On June 24, 2004, Ebert filed its motion for summary judgment. On August 27, 2004, Barrish filed her brief in opposition. On September 7, 2004, the trial court granted Ebert's motion for summary judgment on the grounds that Barrish failed to present evidence (1) as to the cause of her fall and (2) that the wheelchair ramp was negligently designed, maintained, or constructed.
{ } It is from this decision that Barrish now appeals and raises one assignment of error for our review.
{ } "I. The trial court erred in granting the motion for summary judgment of defendants-appellees."
{ } In this assignment of error, Barrish claims that the trial court erred in granting summary judgment in favor of Ebert because genuine issues of material fact existed concerning her claim for personal injury .
{ } An appellate court reviews a trial court's grant of summary judgment de novo. Grafton v. Ohio Edison Co. (1996), 77 Ohio St.3d 102, 105. "De novo review means that this court uses the same standard that the trial court should have used, and we examine the evidence to determine if as a matter of law no genuine issues exist for trial." Brewer v. Cleveland City Schools (1997), 122 Ohio App.3d 378, citing Dupler v. Mansfield Journal (1980), 64 Ohio St.2d 116, 119-120.
{ } Summary judgment is appropriate where it appears that: (1) there is no genuine issue as to any material fact; (2) the moving party is entitled to judgment as a matter of law; and (3) 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. Harless v. Willis Day Warehousing Co., Inc. (1978), 54 Ohio St.2d 64, 66; Civ.R. 56(C).
{ } The burden is on the movant to show that no genuine issue of material fact exists. Id. Conclusory assertions that the non-movant has no evidence to prove its case are insufficient; the movant must specifically point to evidence contained within the pleadings, depositions, answers to interrogatories, written admissions, affidavits, etc., which affirmatively demonstrate that the non-movant has no evidence to support his claims. Dresher v. Burt (199
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