Turner v. Turner

617 N.E.2d 1123, 67 Ohio St. 3d 337
Ohio Supreme Court·Decided September 15, 1993·No. No. 91-2010·Published·Cited by 616 cases

Opinions

Moyer, C.J.

Plaintiff advances two arguments in support of his position that the trial court erred in granting defendant’s motion for summary judgment. In his first argument, plaintiff contends that an evidentiary conflict exists between defendant’s deposition testimony and her affidavit in support of her summary judgment motion, which raises a genuine issue of material fact and thereby precludes summary judgment in her favor. Plaintiff next argues that, even assuming arguendo that no such evidentiary conflict exists, summary judgment for defendant was still improper because (1) plaintiff was competent to testify as to whether it was necessary for defendant to brake in order to avoid colliding with the car traveling ahead of their car, and (2) through his affidavit and deposition testimony, plaintiff met his burden of setting forth evidence of his mother’s negligence sufficient to withstand her motion for summary judgment.

I

Movant’s Evidentiary Conflicts

Pursuant to Civ.R. 56(C), summary judgment is appropriately rendered when “(1) [n]o 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 [340]*340such 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, 4 O.O.3d 466, 472, 364 N.E.2d 267, 274. Accord Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64, 8 O.O.3d 73, 375 N.E.2d 46.

Because summary judgment represents a shortcut through the normal litigation process by avoiding a trial, “the burden of establishing that the material facts are not in dispute and that no genuine issue of fact exists is on the party moving for the summary judgment.” (Emphasis added.) Fyffe v. Jeno’s, Inc. (1991), 59 Ohio St.3d 115, 120, 570 N.E.2d 1108, 1114.

Determination of the materiality of facts is discussed in Anderson v. Liberty Lobby, Inc. (1986), 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202. “As to materiality, the substantive law will identify which facts are material. Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Id. at 248, 106 S.Ct. at 2510, 91 L.Ed.2d at 211. See, also, Perez v. Scripps-Howard Broadcasting Co. (1988), 35 Ohio St.3d 215, 218-219, 520 N.E.2d 198, 202.

In the case sub judice, whether defendant’s car would have struck the car ahead of her had she not braked may affect the outcome of her son’s lawsuit against her. For instance, if defendant had no other choice but to brake in order to avoid a collision, her conduct will be deemed reasonable. If defendant could have continued in her lane of traffic without striking that car, a jury may find that she was negligent in suddenly applying her brakes. Quite obviously, resolution of this factual dispute determines the action.

Having found that a material question of fact exists, we next consider, pursuant to Civ.R. 56(C), whether there is a genuine issue. Whether a genuine issue exists is answered by the following inquiry: Does the evidence present “a sufficient disagreement to require submission to a jury” or is it “so one-sided that one party must prevail as a matter of law[?]” Anderson v. Liberty Lobby, supra, 477 U.S. at 251-252, 106 S.Ct. at 2512, 91 L.Ed.2d at 214.

Plaintiffs first argument is based on an alleged evidentiary conflict between his mother’s affidavit and her deposition testimony on a factual issue: whether her car would have struck the car traveling ahead of her had she not pressed the brakes. In seeking summary judgment, defendant submitted an affidavit containing the following statement: “In view of the emergency created by the car in front of me when it lost control, I felt that I had to apply my brakes to avoid a collision.” Defendant, however, had been less certain that she needed to brake when she was deposed on that factual issue three weeks earlier:

“Q. * * * My question has been, if you didn’t hit the brakes, would you have hit his car. And your answers have been I don’t know; is that correct?
[341]*341“A. Well, I really don’t know.
“Q. Okay. So you don’t know. So, if someone were to say yes, you would not have hit that car, you wouldn’t know otherwise, is that correct?
“A. Well, I feel there was a possibility I could have hit it and a possibility I could have missed it. How’s that?
“Q. You mean if you hadn’t braked?
“A. If I hadn’t — tell me again.
“Q. Sure, absolutely. See, what this is trying to do is figure out since you’re there—
“A. See, I really don’t know. You don’t know. Even I don’t think you could answer that question saying that if you would have hit that car or you wouldn’t have hit that car. I mean, I did what I felt was right, I braked.” (Emphasis added.)

In deciding whether an evidentiary conflict exists so as to preclude summary judgment, a trial court must adhere to Civ.R. 56(C) and view the record in the light most favorable to the party opposing the motion. Kunkler v. Goodyear Tire & Rubber Co. (1988), 36 Ohio St.3d 135, 138, 522 N.E.2d 477, 480. Even the inferences to be drawn from the underlying facts contained in the affidavits and depositions must be construed in the nonmoving party’s favor. Hounshell v. Am. States Ins. Co. (1981), 67 Ohio St.2d 427, 433, 21 O.O.3d 267, 271, 424 N.E.2d 311, 315. Bearing this in mind, we must construe defendant’s equivocal responses made in her deposition testimony to mean that she does not know whether braking was necessary to keep from hitting the car that spun out of control ahead of her. Therefore, even though defendant’s affidavit does not explicitly contradict her earlier statements made while being deposed, we nonetheless find an evidentiary conflict concerning the necessity of braking.

It appears that the court of appeals determined the credibility of the evidence, contrary to the purpose of Civ.R. 56(C). Credibility issues typically arise in summary judgment proceedings when one litigant’s statement conflicts with another litigant’s statement over a fact to be proved. Since resolution of the factual dispute will depend, at least in part, upon the credibility of the parties or their witnesses, summary judgment in such a case is inappropriate. However, as demonstrated by the case sub judice,

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Turner v. Turner, 617 N.E.2d 1123, 67 Ohio St. 3d 337 (Ohio 1993).

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