Uddin v. Embassy Suites Hotel12/13/2005
{ } Plaintiff-appellant, Al Uddin, Administrator of the Estate of Shayla Uddin, appeals from a judgment of the Franklin County Court of Common Pleas, which granted summary judgment in favor of defendants-appellees, Embassy Suites Hotel and Hilton Hotels Corporation (collectively "defendants"). For the following reasons, we affirm in part, reverse in part, and remand the matter to the common pleas court.
{ } On April 29, 2000, Shayla Uddin, a ten-year-old child, drowned in an indoor pool at Embassy Suites Hotel, Columbus, Ohio, while she and her family attended a birthday party at the hotel. Thereafter, on March 27, 2002, in a wrongful death and survivorship action, plaintiff sued defendants, as well as anonymous defendants, alleging two causes of action: (1) negligence, and (2) liability based upon the doctrine of attractive nuisance.
{ } Defendants moved for summary judgment, claiming that: (1) they complied with all safety regulations; (2) they exercised ordinary reasonable care; and (3) they were not subject to liability under the attractive nuisance doctrine. Thereafter, granting defendants' motion for summary judgment, the trial court rendered judgment in favor of defendants. From this judgment, plaintiff appeals and assigns a single error for our consideration:
THE TRIAL COURT ERRED IN GRANTING APPELLEE'S MOTION FOR SUMMARY JUDGMENT SINCE A GENUINE ISSUE OF MATERIAL FACT EXISTED AS TO THE NEGLIGENCE OF EMBASSY SUITES[.]
{ } Appellate review of a lower court's granting of summary judgment is de novo. Mitnaul v. Fairmount Presbyterian Church, 149 Ohio App.3d 769, 2002-Ohio-5833, at . " '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 whether as a matter of law no genuine issues exist for trial.' " Id., quoting Brewer v. Cleveland City Schools (1997), 122 Ohio App.3d 378, citing Dupler v. Mansfield Journal (1980), 64 Ohio St.2d 116, 119-120, certiorari denied (1981), 452 U.S. 962, 101 S.Ct. 3111.
{ } Summary judgment is proper when a movant for summary judgment demonstrates: (1) no genuine issue of material fact exists; (2) the movant is entitled to judgment as a matter of law; and (3) reasonable minds could come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, that party being entitled to have the evidence most strongly construed in its favor. Civ.R. 56; State ex rel. Grady v. State Emp. Relations Bd. (1997), 78 Ohio St.3d 181, 183.
{ } Under Civ.R. 56(C), a movant bears the initial burden of informing the trial court of the basis for the motion and identifying those portions of the record demonstrating the absence of a material fact. Dresher v. Burt (1996), 75 Ohio St.3d 280, 293. Once a movant discharges its initial burden, summary judgment is appropriate if the nonmoving party does not respond, by affidavit or as otherwise provided in Civ.R. 56, with specific facts showing that a genuine issue exists for trial. Dresher, at 293; Vahila v. Hall (1997), 77 Ohio St.3d 421, 430; Civ.R. 56(E).
{ } "To maintain an action for damages for wrongful death upon the theory of negligence, a plaintiff must show (1) the existence of a duty owing to plaintiff's decedent, i.e., the duty to exercise ordinary care, (2) a breach of that duty, and (3) proximate causation between the breach of duty and the death." Bennison v. Stillpass Transit Co. (1966), 5 Ohio St.2d 122, paragraph one of the syllabus. For a party to recover under a theory of negligence, all the elements of negligence must be demonstrated. Whiting v. Ohio Dept. of Mental Health (2001), 141 Ohio App.3d 1
Page 1 2 3 4 5 6 7 8 9 10 11 12 Ohio Personal Injury Attorneys
Personal Injury Lawyers
|