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Boyd v. Hariani8/31/2005
DECISION AND JOURNAL ENTRY
This cause was heard upon the record in the trial court. Each error assigned has been reviewed and the following disposition is made:
{ } Plaintiff-Appellant Patricia A. Boyd has appealed the decision of the Summit County Court of Common Pleas that granted summary judgment in favor of the Defendants-Appellees Sunil Hariani, et al. This Court affirms.
I.
{ } On April 12, 2004, Plaintiff-Appellant Patricia A. Boyd filed suit against Defendants-Appellees Sunil Hariani, et al. for personal injury resulting from a fall in her home on April 30, 2002. Specifically, Appellant claimed that the fall was proximately caused by a defective step at the bottom of the interior staircase. Further, the complaint alleged that as her landlords, Appellees' failure to maintain the stairway in a safe and secure condition violated a duty proscribed in R.C. 5321.04. Thus, Appellees were negligent per se.
{ } On October 25, 2004, Appellees filed a motion for summary judgment. Appellant responded in opposition to Appellees' motion for summary judgment on December 9, 2004. On December 30, 2004, the trial court granted Appellees' motion for summary judgment. Appellant has timely appealed the decision of the trial court, asserting two assignments of error.
II.
Assignment of Error Number One
"THE TRIAL COURT IMPROPERLY DISCREDITED AS 'SELF-SERVING' THE APPELLANT'S DEPOSITION TESTIMONY THAT SHE NOTIFIED AMHA OF THE DEFECT ON THE STAIRCASE."
{ } In her first assignment of error, Appellant has argued that the trial court erred in discrediting her deposition testimony as "self-serving." Specifically, Appellant has argued that the trial court categorized her deposition testimony as self-serving, and thereby improperly weighed the credibility of her testimony at the summary judgment stage. We disagree.
{ } This Court reviews an award of summary judgment de novo. Grafton v. Ohio Edison Co. (1996), 77 Ohio St.3d 102, 105. This Court views the facts presented by the moving party in a light most favorable to the non-moving party and resolves any doubt in favor of the non-moving party. Viock v. Stowe-Woodward Co. (1983), 13 Ohio App.3d 7, 12, certiorari denied (1986), 479 U.S. 948, 107 S.Ct. 433, 93 L.Ed. 2d 383.
{ } Pursuant to Civ.R. 56(C), summary judgment is proper if: "(1) No genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party." Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327.
{ } To prevail on a motion for summary judgment, the party moving for summary judgment must be able to point to evidentiary materials that show that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Dresher v. Burt (1996), 75 Ohio St.3d 280, 293. "Once a moving party satisfies its burden of supporting its motion for summary judgment with sufficient and acceptable evidence pursuant to Civ.R. 56(C), Civ.R. 56(E) provides that the non-moving party may not rest upon the mere allegations or denials of the moving party's pleadings." Elsass v. Crockett, 9th Dist. No. 22282, 2005-Ohio-2142, . Rather, the non-moving party has a reciprocal burden of responding by setting forth specific facts, demonstrating that a "genuine triable issue" exists to be litigated for trial. State ex rel. Zimmerman v. T
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