Rodger v. McDonald's Restaurants of Ohio, Inc.

456 N.E.2d 1262, 8 Ohio App. 3d 256, 8 Ohio B. 347, 1982 Ohio App. LEXIS 11259

• Court: Ohio Court of Appeals
• Decided: December 9, 1982
• Docket: 44548
• Status: Published

Opinions

Jackson, J.

This is an appeal from a decision of the Cuyahoga County Court of Common Pleas granting summary judgment against plaintiff-appellant, John M. Rodger, and in favor of defendants-appellees, McDonald’s Restaurants of Ohio, Inc. and Finklea, Inc.

In determining the validity of a decision of the trial court granting summary judgment, the nonmoving party is entitled to have all reasonable competing inferences and the evidence construed most strongly in his favor. 1 The record reveals the following facts pertinent to disposition of the issues raised by this appeal.

On December 4, 1980, at approximately 6:30 p.m., appellant John Rodger left his business office in Avon Lake, Ohio to meet a friend at a tavern on the near west side of Cleveland. Appellant left the tavern at approximately 7:50 p.m., and headed for his Shaker Heights residence. As he was approaching 10660 Euclid Avenue in Cleveland, appellant decided to stop at a McDonald’s Restaurant owned and operated by ap-pellee Finklea, Inc. 2 He parked his car in the lot behind the building, and entered the crowded restaurant. As he walked past a group of people who appeared to be waiting just inside the entranceway for a bus, appellant noticed the location of the restaurant’s restrooms in the rear. After placing his order, appellant asked the McDonald’s employee at the counter if he could use the washroom; she responded that the restroom doors were locked and that she would have to “buzz” him in. Appellant walked out of direct view of the counter area and down an aisle to the restroom; when the door buzzed he entered the restroom. When appellant walked into the restroom he was assaulted by a man who either followed him into the washroom or who was hiding behind the door when he entered. Appellant shouted for help and was struck repeatedly in the face. Appellant had $40 on his person, but the assailant did not get the money. The assailant immediately departed the restroom, and by the time appellant was able to return to the restaurant area the assailant was gone. Appellant informed the manager of the restaurant about the incident, and received emergency room treatment for his injuries at a local hospital. 3

The appellant alleged in his complaint that the counter employee carelessly and negligently permitted the assailant to enter the restroom with him, and that defendants failed to come to his aid after he called for help. He further alleged that he suffered severe bruises, incurred medical expenses, lost time from work, and received disfiguring scars. In the prayer, appellant sought damages of $250,000 and costs. In their joint answer appellees denied that the employee at the front counter was negligent, and denied that they had failed to come to appellant’s aid or to apprehend the assailant; ap-pellees also asserted the affirmative defenses of contributory negligence and assumption of risk. 4

On April 11, 1981, a pretrial conference was convened by the trial court, and a second pretrial conference was scheduled for late August. On August 28, 1981, appellees filed a motion for summary judgment and in support of such motion filed unauthenticated copies of portions of appellant’s pretrial deposition, 5 and an affidavit from a stockholder of Finklea, Inc. who asserted that, apart from the incident involving appellant, she had no personal knowledge that anyone had ever been assaulted in the restaurant after August 1, 1978, and that she had no reason to know that appellant would be assaulted in the restroom. 6

Appellant did not file a brief or documentary evidence in opposition to the motion for summary judgment. Nor did appellant object to the timeliness of the motion, or the evidentiary quality of the documentary evidence filed by appellees. 7 The trial court granted summary judgment against appellant and a timely appeal was perfected to this court.

In the three errors assigned by appellant it is contended that the trial court erroneously granted appellees’ motion for summary judgment. Upon consideration of the pleadings and the evidence submitted by appellees in support of the motion, we are persuaded that this contention is well-taken.

Civ. R. 56 governs summary judgment proceedings. Civ. R. 56(C) provides in pertinent part:

“* * * Summary judgment shall be rendered forthwith if the pleading, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence in the pending case, and written stipulations of fact, if any, timely filed in the action 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. No evidence or stipulation may be considered except as stated in this rule. A summary judgment shall not he rendered unless it appears from such evidence or stipulation and only therefrom, that 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, such party being entitled to have the evidence or stipulation construed most strongly in his favor. ” (Emphasis added.)

Pursuant to Civ. R. 56(E), where the evidentiary materials filed by the moving party do not establish the absence of a genuine issue of material fact and that the moving party is entitled to judgment as a matter of law, summary judgment must be denied even if no opposing evidentiary material is presented by the nonmoving party. See Advisory Committee’s Note to the 1963 Amendments to Fed. R. Civ. P. 56, reprinted at 31 F.R.D. 647, 648; and 10A Wright & Miller, Federal Practice and Procedure (1973) 511, Section 2739; and cf. Adickes v. S.H. Kress & Co. (1970), 398 U.S. 144. Because it is the purpose of summary judgment to pierce the allegations of the pleadings and to assess the proof to determine whether there is a need for trial, 8 a party opposing a motion for summary judgment need not come forward with documentary evidence, if the moving party has not supported his motion to the point of demonstrating, with competent evidence, that the material factual allegations of the nonmoving party’s pleadings are mere sham, and that such moving party is entitled to judgment. Cf. Brunswick Corp. v. Vineberg (C.A. 5, 1967), 370 F. 2d 605, 612.

The party seeking summary judgment bears the burden of showing that no genuine issue of material fact exists for trial. Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St. 2d 64, 66 [8 O.O.3d 73].

Based upon the sparse evidence presented below, this court is unable to conclude as a matter of law that appellant’s factual allegation of negligence by appellees’ employee was mere sham, and that appellees were entitled to judgment. The record is virtually silent with respect to the existence of past incidents of violence in or about the restaurant which might have put appellees’ employees on notice of potential harm to customers; the record is also silent with respect to what, if anything, was in fact observed or heard by appellees’ employees when the assailant entered and remained in the restroom.

This court is not persuaded that the affidavit of Mrs. Finklea, as a stockholder of Finklea, Inc., is sufficient to negate the allegations of the pleadings, for it does not appear from her affidavit that she had personal knowledge of, or received reports concerning, criminal episodes at the restaurant in question.

In their brief supporting the motion for summary judgment, appellees make reference to an affidavit of Richard Lee Bennett, manager of the restaurant in question, who is quoted as saying that appellant was intoxicated when the incident occurred. The appellees did not quote Bennett as having stated in his affidavit that, from personal knowledge, similar incidents had not occurred in the past which would be relevant to the issue of negligence as charged in appellant’s complaint. No mention of Bennett’s affidavit is made in appellees’ brief on appeal.

A careful review of the record from the trial court discloses that no affidavit whatsoever from Bennett was filed by ap-pellees in the trial court with their motion for summary judgment. In view of the burden imposed on appellees by Civ. R. 56(C) to demonstrate that no genuine issue of material fact exists for trial on the issue of negligence, it is significant that an affidavit by a stockholder, rather than the manager of the restaurant, was submitted to provide personal knowledge of such matter.

In the absence of evidence which would, as a matter of law, absolve the ap-pellees of the charge of negligence, there remains a genuine issue of fact for trial. It was therefore error for the trial court to grant the appellees’ motion for summary judgment.

Accordingly, the judgment of the trial court is reversed and the case is remanded for further proceedings, at appellees’ costs.

Judgment reversed and case remanded.

Parrino, J., concurs. Corrigan, P.J., dissents.

1 See Civ. R. 56(C), infra.

2 Appellant was bom in Chicago, and moved to the Cleveland area in 1968. In his deposition testimony he indicated that he had never before stopped at the McDonald’s restaurant at the corner of East 107th and Euclid, and that when he stopped he was not “concerned about the neighborhood.” He further stated that because of his past experience at many McDonald’s restaurants, he “always felt like [he] could stop for a safe meal.”

3 Appellant was wounded on the cheek, and received four stitches in both his lips, and inside his mouth; when he arrived at the hospital one eye was swollen shut.

4 In the complaint appellant asserted that appellee McDonald’s Restaurants of Ohio, Inc. was the owner or operator of the restaurant; this however, was denied by McDonald’s Restaurants of Ohio, Inc. in the answer. Although Mrs. Finklea in her affidavit stated that ap-pellee Finklea, Inc. owned and operated the restaurant, this court is unable to conclude as a matter of law from this statement alone that McDonald’s Restaurants of Ohio, Inc. did not have sufficient control over the operation to warrant the imposition of civil liability.

5 Appellant’s deposition testimony indicated that although there was a large mirror in the restaurant which might have enabled the employees at the counter to see the door to the washroom, the group of people permitted by the restaurant to wait inside the entranceway of the restaurant for a bus obstructed the view of the restroom area by the counter employee. He stated he didn’t know whether the employee at the counter saw the assailant follow him into the restroom.

6 There is nothing in the stockholder’s affidavit which indicates that she was in a position to receive information concerning incidents on or about the restaurant premises. See Civ. R. 56(E).

7 By failing to interpose a timely objection, any error committed by the court in considering the untimely motion or the unauthenticated documentary evidence was waived by appellant for purposes of this appeal. See Brown v. Insurance Co. (1978), 63 Ohio App. 2d 87 [17 O.O.3d 267].

8 And, see, Dawkins v. Green (C.A. 5, 1969), 412 F. 2d 644, 646 (where the court determined that because the moving party’s evidentiary materials contained mere factual “conclusions” of no probative value, the failure of the party opposing the motion to refute those factual conclusions with documentary evidence did not warrant the granting of a summary judgment in favor of the moving party).