OPINION
KIRSCH, Judge.
Carol Creasy appeals the grant of summary judgment in favor of Lloyd Rusk in Creasy’s action for personal injuries she suffered while caring for Rusk in a health care facility. The issues we must decide are:
I. Whether a person who is institutionalized with a mental disability owes a duty of care to his caregiver to refrain from conduct that results in injury to the caregiver.
if. Whether genuine issues of material fact exist precluding summary judgment- on the question of whether any duty was breached.
III. Whether genuine issues of material fact exist precluding summary judgment on the question of fault allocation.
We reverse.
FACTS AND PROCEDURAL HISTORY
Lloyd Rusk was admitted to the Brethren Healthcare Center (BHC) in July 1992 with a primary diagnosis of Alzheimer’s Disease. He was admitted to the facility because he suffered from memory loss and confusion, and his wife was unable to care for him. While at BHC, Rusk was anxious, confused, disoriented, and agitated. On several occasions, he resisted when staff members attempted to remove him from areas of the facility where he did not belong. On other occasions, Rusk was belligerent and combative with both staff and' patients. In particular, Rusk was often combative, agitated, and aggressive and' would hit at staff members while they cared- for him.
[444]*444Creasy was a certified nursing assistant employed at BHC. Creasy’s duties required her to care for patients with Alzheimer’s, including Rusk. She attended a short BHC presentation concerning the pathological effects of Alzheimer’s, but had not otherwise received special training on how to care for those with the disease. Creasy had been bruised on several occasions by patients with Alzheimer’s, and she knew that Rusk suffered from Alzheimer’s.
On May 16,1995, Creasy and Linda Davis, another certified nursing assistant employed at BHC, attempted to put Rusk to bed. Creasy was aware that Rusk had been “very agitated and combative that evening.” Record at 228. According to Creasy:
“[Davis] was holding [Rusk’s] wrists to keep him from hitting [them] and [Creasy] was trying to get his legs to put him in bed. He was hitting and kicking wildly. During this time, he kicked [Creasy] several times in [her] knee and hip area. [Her] lower back popped and [she] yelled out with pain from [her] lower back and left knee.”
Record at 228.
Creasy filed a civil suit against Rusk, seeking monetary damages for injuries she suffered as a result of the incident. The trial court granted Rusk’s motion for summary judgment concluding that Rusk did not owe a duty to Creasy, that Creasy incurred the risk of her injuries, that Creasy’s comparative fault exceeded all other fault proximately contributing to her injuries, and that Creasy had failed to bring forth evidence that Rusk had breached any duty owed to her. Creasy appeals.
DISCUSSION AND DECISION
The purpose of summary judgment is to end litigation about which there can be no factual dispute and which may be determined as a matter of law. Sizemore v. Arnold, 647 N.E.2d 697, 698 (Ind.Ct.App.1995). When reviewing a decision on a summary judgment motion, this court applies the same standard as does the trial court. Wickey v. Sparks, 642 N.E.2d 262, 265 (Ind.Ct.App.1994), trans. denied (1995). Thus, we are not bound by the findings and conclusions entered by the trial court when ruling on a motion for summary judgment as we base our decision upon the Trial Rule 56(C) materials properly presented to the trial court. Campbell v. Spade, 617 N.E.2d 580, 582-83 (Ind.Ct.App.1993). Summary judgment shall be granted if the designated evidentiary matter demonstrates 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. Ind.Trial Rule 56(C); Barga v. Indiana Farmers Mut. Ins. Group, Inc., 687 N.E.2d 575, 576 (Ind.Ct.App.1997), trans. denied (1998). In determining whether summary judgment is appropriate, all facts and reasonable inferences must be construed against the moving party. Wickey, 642 N.E.2d at 265.
I. DUTY
The issue we must decide has not been directly addressed in Indiana: Does a person institutionalized with a mental disability owe a duty to his caregiver to refrain from conduct that results in injury to the caregiver? The parties argue for and against the wisdom of adopting a general rule, used in several other jurisdictions, that mentally disabled individuals be held liable for their tortious activities without regard to the individuals’ mental capacity to control their actions or understand the consequences thereof. Such a general rule is embodied in the Restatement (Second) of Torts which provides: “Unless the actor is a child, his insanity or other mental deficiency does not relieve the actor from liability for conduct which does not conform to the standard of a reasonable man under like circumstances.” Restatement (Second) of Torts § 283B (1964). While the Restatement uses the reasonable man standard for adults, regardless of their mental capacity, the standard of conduct for a child is “that of a reasonable person of like age, intelligence, and experience under like circumstances.” Id. § 283A. Such a standard takes a child’s mental capacity into account. Id. § 283B cmt. a.
With regard to children, Indiana has incorporated the Restatement standard into a three-tiered analysis. The three tiers are:
[445]*445“[Cjhildren under the age of 7 years are conclusively presumed to be incapable of being eontributorily negligent, from 7 to 14 a rebuttable presumption exists they may be guilty thereof, and over 14, absent special circumstances, they are chargeable with exercising the standard of care of an adult.”
Bailey v. Martz, 488 N.E.2d 716, 721 (Ind.Ct.App.1986) (citing Smith v. Diamond, 421 N.E.2d 1172, 1177-79 (Ind.Ct.App.1981)), trans. denied.1 In the middle age category, the standard of care is in accord with the Restatement: whether the child exercised the care under the circumstances of a child of like age, knowledge, judgment and experience. Id. This court long ago recognized “the wisdom of the rule which holds a child to the exercise of care proportionate to its capacity.” Baltimore & Ohio Southwestern R.R. Co. v. Hickman, 40 Ind.App. 315, 318, 81 N.E. 1086, 1087 (1907).
Unlike the Restatement, which treats children differently than adults in terms of the standard of care required of each, Indiana has indicated a willingness to factor in an adult’s mental capacity when determining whether to hold such a person responsible for negligence. In Riesbeck Drug Co. v. Wray, 111 Ind.App. 467, 39 N.E.2d 776 (1942), this court was presented with an appeal from an action against a pharmacy in connection with the death of the plaintiff’s husband. The deceased, who was ill, unemployed, and suffering from depression, sent his eight-year-old son to the local pharmacy to obtain carbolic acid.
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OPINION
KIRSCH, Judge.
Carol Creasy appeals the grant of summary judgment in favor of Lloyd Rusk in Creasy’s action for personal injuries she suffered while caring for Rusk in a health care facility. The issues we must decide are:
I. Whether a person who is institutionalized with a mental disability owes a duty of care to his caregiver to refrain from conduct that results in injury to the caregiver.
if. Whether genuine issues of material fact exist precluding summary judgment- on the question of whether any duty was breached.
III. Whether genuine issues of material fact exist precluding summary judgment on the question of fault allocation.
We reverse.
FACTS AND PROCEDURAL HISTORY
Lloyd Rusk was admitted to the Brethren Healthcare Center (BHC) in July 1992 with a primary diagnosis of Alzheimer’s Disease. He was admitted to the facility because he suffered from memory loss and confusion, and his wife was unable to care for him. While at BHC, Rusk was anxious, confused, disoriented, and agitated. On several occasions, he resisted when staff members attempted to remove him from areas of the facility where he did not belong. On other occasions, Rusk was belligerent and combative with both staff and' patients. In particular, Rusk was often combative, agitated, and aggressive and' would hit at staff members while they cared- for him.
[444]*444Creasy was a certified nursing assistant employed at BHC. Creasy’s duties required her to care for patients with Alzheimer’s, including Rusk. She attended a short BHC presentation concerning the pathological effects of Alzheimer’s, but had not otherwise received special training on how to care for those with the disease. Creasy had been bruised on several occasions by patients with Alzheimer’s, and she knew that Rusk suffered from Alzheimer’s.
On May 16,1995, Creasy and Linda Davis, another certified nursing assistant employed at BHC, attempted to put Rusk to bed. Creasy was aware that Rusk had been “very agitated and combative that evening.” Record at 228. According to Creasy:
“[Davis] was holding [Rusk’s] wrists to keep him from hitting [them] and [Creasy] was trying to get his legs to put him in bed. He was hitting and kicking wildly. During this time, he kicked [Creasy] several times in [her] knee and hip area. [Her] lower back popped and [she] yelled out with pain from [her] lower back and left knee.”
Record at 228.
Creasy filed a civil suit against Rusk, seeking monetary damages for injuries she suffered as a result of the incident. The trial court granted Rusk’s motion for summary judgment concluding that Rusk did not owe a duty to Creasy, that Creasy incurred the risk of her injuries, that Creasy’s comparative fault exceeded all other fault proximately contributing to her injuries, and that Creasy had failed to bring forth evidence that Rusk had breached any duty owed to her. Creasy appeals.
DISCUSSION AND DECISION
The purpose of summary judgment is to end litigation about which there can be no factual dispute and which may be determined as a matter of law. Sizemore v. Arnold, 647 N.E.2d 697, 698 (Ind.Ct.App.1995). When reviewing a decision on a summary judgment motion, this court applies the same standard as does the trial court. Wickey v. Sparks, 642 N.E.2d 262, 265 (Ind.Ct.App.1994), trans. denied (1995). Thus, we are not bound by the findings and conclusions entered by the trial court when ruling on a motion for summary judgment as we base our decision upon the Trial Rule 56(C) materials properly presented to the trial court. Campbell v. Spade, 617 N.E.2d 580, 582-83 (Ind.Ct.App.1993). Summary judgment shall be granted if the designated evidentiary matter demonstrates 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. Ind.Trial Rule 56(C); Barga v. Indiana Farmers Mut. Ins. Group, Inc., 687 N.E.2d 575, 576 (Ind.Ct.App.1997), trans. denied (1998). In determining whether summary judgment is appropriate, all facts and reasonable inferences must be construed against the moving party. Wickey, 642 N.E.2d at 265.
I. DUTY
The issue we must decide has not been directly addressed in Indiana: Does a person institutionalized with a mental disability owe a duty to his caregiver to refrain from conduct that results in injury to the caregiver? The parties argue for and against the wisdom of adopting a general rule, used in several other jurisdictions, that mentally disabled individuals be held liable for their tortious activities without regard to the individuals’ mental capacity to control their actions or understand the consequences thereof. Such a general rule is embodied in the Restatement (Second) of Torts which provides: “Unless the actor is a child, his insanity or other mental deficiency does not relieve the actor from liability for conduct which does not conform to the standard of a reasonable man under like circumstances.” Restatement (Second) of Torts § 283B (1964). While the Restatement uses the reasonable man standard for adults, regardless of their mental capacity, the standard of conduct for a child is “that of a reasonable person of like age, intelligence, and experience under like circumstances.” Id. § 283A. Such a standard takes a child’s mental capacity into account. Id. § 283B cmt. a.
With regard to children, Indiana has incorporated the Restatement standard into a three-tiered analysis. The three tiers are:
[445]*445“[Cjhildren under the age of 7 years are conclusively presumed to be incapable of being eontributorily negligent, from 7 to 14 a rebuttable presumption exists they may be guilty thereof, and over 14, absent special circumstances, they are chargeable with exercising the standard of care of an adult.”
Bailey v. Martz, 488 N.E.2d 716, 721 (Ind.Ct.App.1986) (citing Smith v. Diamond, 421 N.E.2d 1172, 1177-79 (Ind.Ct.App.1981)), trans. denied.1 In the middle age category, the standard of care is in accord with the Restatement: whether the child exercised the care under the circumstances of a child of like age, knowledge, judgment and experience. Id. This court long ago recognized “the wisdom of the rule which holds a child to the exercise of care proportionate to its capacity.” Baltimore & Ohio Southwestern R.R. Co. v. Hickman, 40 Ind.App. 315, 318, 81 N.E. 1086, 1087 (1907).
Unlike the Restatement, which treats children differently than adults in terms of the standard of care required of each, Indiana has indicated a willingness to factor in an adult’s mental capacity when determining whether to hold such a person responsible for negligence. In Riesbeck Drug Co. v. Wray, 111 Ind.App. 467, 39 N.E.2d 776 (1942), this court was presented with an appeal from an action against a pharmacy in connection with the death of the plaintiff’s husband. The deceased, who was ill, unemployed, and suffering from depression, sent his eight-year-old son to the local pharmacy to obtain carbolic acid. The pharmacy distributed the acid to the child who brought it home to his father. The father then took his own life by ingesting the acid. This court stated that evidence of the deceased’s mental condition at the time he sent his son to obtain the acid was material on the question of contributory negligence and declared:
“Although in the case of adults it has been deemed impracticable and unwise to determine contributory negligence on the basis of whether the party was mentally acute or inclined to be dull or slow-witted, although not mentally deficient, a person who is so absolutely devoid of intelligence as to be unable to apprehend apparent danger and to avoid exposure to it cannot be said to be guilty of negligence. Knowledge and appreciation of peril are essential elements of contributory negligence, and evidence is admissible to show a plaintiffs mental condition to aid the jury in determining whether he understood and appreciated the danger. 38 Am.Jur., Negligence, Sec. 201 p. 882.”
Id. at 475, 39 N.E.2d at 779.
This court subsequently limited the application of the foregoing principles in Kroger Co. v. Haun, 177 Ind.App. 403, 379 N.E.2d 1004 (1978). One of the questions decided in Kroger was whether the doctrine of contributory negligence required the plaintiffs actual knowledge of the peril or whether constructive knowledge would suffice. This court first noted that the Wray court’s reliance on the American Jurisprudence authority “reveals that the cited section deals with the existence of extenuating circumstances — age, illiteracy, mental. incompetency — which call for special consideration in applying the standard ‘reasonable man’ test.” Id. at 411, 379 N.E.2d at 1009-10. The Kroger court acknowledged the import of the existence of such extenuating circumstances when it ultimately held that: “We believe the actual state of the law to be, absent extenuating circumstances such as age or mental incompetency, that contributory negligence may be found either where plaintiff has actual knowledge of the danger, or, in the exercise of reasonable care, should have appreciated or anticipated the danger.” Id. at 413, 379 N.E .2d at 1010-11.2
[446]*446Based upon this precedent, we hold that a person’s mental capacity, whether that person is a child or an adult, must be factored in to the determination of whether a legal duty exists. The determination of whether such a duty exists is most frequently accomplished by balancing the three factors set forth in Webb v. Jarvis, 575 N.E.2d 992, 995 (Ind.1991): 1) the relationship between the parties; 2) the reasonable foreseeability of harm to the person injured; and, 3) public policy concerns.3 Although the existence of a duty arising from the balancing of these factors is generally a question of law for the court to decide, genuine issues of material fact may be interwoven with the relationship and foreseeability factors, making the existence of a duty a mixed question of law and fact, ultimately to be decided by the finder of fact. State v. Cornelius, 637 N.E.2d 195, 198 (Ind.Ct.App.1994), trans. denied.
A.Relationship Between the Parties
In determining whether a relationship exists between two parties upon which a legal duty may be based, there must be some knowledge on the part of the purported tortfeasor that his or her conduct may draw him or her into a legal relationship with another. T.S.B. by Dant v. Clinard, 553 N.E.2d 1253, 1256 (Ind.Ct.App.1990) (party being charged with negligence must have knowledge of situation or circumstances surrounding relationship). In the absence of extenuating circumstances, the relationship between a patient in a health care facility and the caregivers working in the facility is sufficient upon which to base a legal duty.
Extenuating circumstances that alter the relationship include the patient’s mental capacity. The patient-caregiver relationship will vary according to the nature and extent of the patient’s mental capacity to control his actions and understand the consequences thereof. The greater the degree of the patient’s impairment,- the less weight to be given to the relationship factor in determining legal duty.
B. Foreseeability of Harm
The foreseeability factor is analyzed by considering “the broad type of plaintiff and harm involved, without regard to the facts of the actual occurrence.” Goldsberry v. Grubbs, 672 N.E.2d 475, 479 (Ind.Ct.App.1996). The type of plaintiff involved here is a caregiver of patients with Alzheimer’s disease. As the trial court found, Alzheimer’s patients often exhibit signs of violence and combativeness. Record at 255. It is foreseeable that when an Alzheimer’s patient becomes combative in the presence of his caregiver, the caregiver will be injured. Thus, the foreseeability factor weighs in favor of imposing a duty.
C. Public Policy Concerns
The public policy concerns involved with imposing a duty on an institutionalized mentally disabled patient are the cause of passionate debate. The Wisconsin Supreme Court has stated the public policy concerns as:
“where a loss must be borne by one of two innocent persons, it shall be borne by him who occasioned it, and it has also been held that public policy requires the enforcement [447]*447of the liability in order that those interested in the estate of the insane person, as relatives or otherwise, may be under inducement to restrain him and that tort-feasors may not simulate or pretend insanity to defend their wrongful acts causing damage to others.”
Gould v. American Family Mut. Ins. Co., 198 Wis.2d 450, 543 N.W.2d 282, 285 (1996) (quoting In re Meyer’s Guardianship, 218 Wis. 381, 261 N.W. 211, 213 (1935)). These public policy considerations prompted Wisconsin to subscribe to the general rule that mentally disabled adults are held responsible for their torts without regard to their mental capacity. See Gould, 543 N.W.2d at 284-85 (noting general rule adopted in Meyer). On the theory that none of these public policy considerations are present with an institutionalized mentally disabled patient who cannot control or appreciate his or her conduct, the Wisconsin Supreme Court created a narrow exception to the general rule to provide “that a person institutionalized ... with a mental disability, and who does not have the capacity to control or appreciate his or her conduct cannot be liable for injuries caused to caretakers who are employed for financial compensation.” Id., 543 N.W.2d at 287. See also Burch v. American Family Mut. Ins. Co., 198 Wis.2d 465, 543 N.W.2d 277, 280 (1996) (recognizing that Gould decision “carves out a very narrow exception for institutionalized mentally disabled persons who are unable to control or appreciate the consequences of their conduct when they injure caretakers who are employed for financial compensation.”). The court’s justification for creating this exception was that the circumstances of the case “totally negate the rationale behind the rule and would place an unreasonable burden on the negligent institutionalized mentally disabled.” Gould, 543 N.W.2d at 287. The court explained:
“When a mentally disabled person injures an employed caretaker, the injured party can reasonably foresee the danger and is not ‘innocent’ of the risk involved. By placing a mentally disabled person in an institution or similar restrictive setting, ‘those interested in the estate’ of that person are not likely to be in need of an inducement for greater restraint. It is incredible to assert that a tortfeasor would ‘simulate or pretend insanity’ over a prolonged period of time and even be institutionalized in order to avoid being held liable for damages for some future civil act.”
Id. (quoting Meyer). The court recognized that other courts “have rejected the common law rule within the limited context of severely mentally disabled persons confined in institutions based on similar public policy considerations.” Id. n. 7 (citing Mujica v. Turner, 582 So.2d 24, 25 (Fla.Dist.Ct.App.1991); Anicet v. Gant, 580 So.2d 273 (Fla.Dist.Ct.App.1991)).
In addition to the considerations identified in Wisconsin and Florida, other public policy concerns weigh both in favor of and against imposing a duty on an institutionalized'mentally disabled person. On the one hand, imposing a duty on institutionalized mentally disabled patients will encourage individuáis to seek and accept positions as caregivers because they know their injuries will not go uncompensated. Imposing a duty on institutionalized mentally disabled patients may also make equal application of the law difficult because of the inherent challenges of distinguishing between those individuals who suffer a mental incapacity of such a degree that a legal duty should not be imposed and those individuals who suffer from a less severe emotional imbalance upon whom a duty should be imposed. On the other hand, public policy is not served by imposing a duty on institutionalized mentally disabled patients who are unable to control their actions or know the consequences thereof and also are unable to obtain liability coverage to insure against the risk of negligence. In addition, there is no rational justification for distinguishing between children who are unable to appreciate danger and upon whom we impose no duty because of incapacity resulting from age, knowledge, judgment, and experience and adults who are unable to appreciate danger because of incapacity resulting from Alzheimer’s or other dementia.
Like the relationship factor, we conclude that the public policy implications of imposing a duty on an institutionalized mentally disabled patient are dependent upon the [448]*448degree of the patient’s incapacity. The greater the patient’s degree of impairment, the more the public policy concerns weigh against imposing a duty on him for the reasons set forth in Gould.
D. Application of Factors to Present Case
Turning to the Record before us, we hold that genuine issues of material fact exist concerning the degree of Rusk’s impairment and, accordingly, the existence of a legal duty. The designated materials establish that Rusk suffered some impairment of his mental capacity. Rusk was admitted to BHC because he suffered from memory loss and confusion. He had been a patient at BHC for nearly three years when the incident with Creasy occurred. Rusk’s history at BHC demonstrated anxiousness, disorientation, combativeness, aggressiveness, and belligerence.
The Record, however, does not establish the degree of Rusk’s impairment or its effect on his ability to control his actions or understand the consequences thereof. In this regard, the trial court determined that there was no genuine issue of material fact presented that “[a]s an Alzheimer’s patient in an advanced stage of the disease, Mr. Rusk was unable to appreciate the consequences of his acts or control his behavior.” Record at 255. Our review of the Record reveals that the only basis for this determination is the affidavit of Sharon Ayres which Rusk designated in support of his motion for summary judgment. Ayres is a Licensed Practical Nurse. There is nothing in her affidavit setting forth her qualifications to render an expert opinion as to Rusk’s medical condition. Without such qualifications, her opinion does not constitute an expert one on the status of Rusk’s mental capacity.4 See Ind.Evidence Rule 702(a) (witness must be qualified as an expert “by knowledge, skill, experience, training, or edueation[.]”). Absent an opinion by a person qualified as an expert, the extent of Rusk’s dementia resulting from Alzheimer’s and its effect on his ability to control his actions or understand the consequences thereof are genuine issues of material fact precluding summary judgment.
Because genuine issues of material fact exist regarding the degree of Rusk’s mental capacity to control or appreciate his conduct, summary judgment was inappropriately entered on the question of whether Rusk owed Creasy a legal duty of care.
II. Incurred Risk
The trial court also found that Rusk was entitled to summary judgment because Creasy incurred the risk of her injuries. Incurred risk no longer exists as an absolute defense to a negligence claim in light of Indiana’s adoption of comparative fault. Heck v. Robey, 659 N.E.2d 498, 505 (Ind.1995). “[A] plaintiff’s risk-taking is a consideration embodied in Indiana’s Comparative Fault Act and must be assessed thereunder.” Johnson v. Steffen, 685 N.E.2d 1117, 1119 (Ind.Ct.App.1997) (discussing Heck), trans. denied (1998).5 Accordingly, we will analyze any risk-taking by Creasy in the following discussion of fault allocation. We simply state here that Rusk was not entitled to judgment as a matter of law on the theory of incurred risk.
III. Fault Allocation
The trial court further found that Rusk was entitled to summary judgment because Creasy’s comparative fault exceeded all other fault proximately contributing to her injuries. Generally, fault allocation under Indiana’s Comparative Fault Act is a question for the trier of fact. Walters v. Dean, 497 N.E.2d 247, 254 (Ind.Ct.App.1986). Fault allocation may be decided as a matter of law only if the evidence is undisputed and the fact finder could reach only one conclusion. Id. To allocate fault to a plaintiff as a matter of law on a theory of incurred risk, the undisputed evidence must conclusively show that plaintiff knew and appreciated the [449]*449danger caused by a defendant’s negligence, but nevertheless voluntarily accepted it. Lilge v. Russell’s Trailer Repair, Inc., 565 N.E.2d 1146, 1150-51 (Ind.Ct.App.1991). The plaintiff must have had more than a general awareness of a potential for mishap; she must have had,actual knowledge of the specific risk. Id. at 1151. Under the Comparative Fault Act, Creasy would be precluded from recovering from Rusk if the amount of fault attributed to her was greater, than the fault attributed to Rusk. See IC 34-4-33-4(a).
Here, Creasy was familiar with caring for Alzheimer’s patients, including Rusk. She was aware that Rusk suffered from Alzheimer’s and knew that he was very agitated and combative on the evening that she was injured. We cannot say as a matter of law, however, that these undisputed facts lead only to the conclusion that Creasy’s fault was greater than Rusk’s. Such a determination is best left to the finder of fact. Rusk was not entitled to judgment as a matter of law on the basis that Creasy’s fault was comparatively greater than Rusk’s.
IV. Breach
The trial court finally found that Rusk was entitled to summary judgment because Creasy did not bring forth evidence that Rusk breached any duty owed to her. Creasy was not required to do so. Under Indiana’s summary judgment standard, “the party séeking summary judgment must demonstrate the absence of any genuine issue of fact as to a determinative issue, and only then is the non-movant required to come forward with contrary evidence.” Goldsberry, 672 N.E.2d at 481 (quoting Jarboe v. Landmark Community Newspapers, 644 N.E.2d 118, 123 (Ind.1994)). The Record here does not show that Rusk, as the party seeking summary judgment, demonstrated the absence of any genuine issue of fact on the issue of breach. Absent such demonstration, Creasy was not required to come forth with any evidence to establish breach. Rusk was not entitled to judgment as a matter of law on the breach element of Creasy’s claim.
Reversed.
SULLIVAN, J., concurs with separate opinion.
FRIEDLANDER, J., dissents with separate opinion.