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Harrison v. Klemm2/23/2001
Rendered on the 23rd day of February, 2001.
Plaintiff-appellant Timothy Harrison appeals from a summary judgment rendered against him on his claim for damages arising from an automobile accident. Harrison contends that the trial court erred by granting summary judgment because he demonstrated the existence of a genuine issue of fact.
We conclude that the evidence presented by Harrison in opposition to the motion for summary judgment constituted inadmissible hearsay, and was properly excluded by the trial court. We further conclude that, without the affidavit, the record reveals that no issue of fact upon which reasonable minds could differ was established. Accordingly, the judgment of the trial court is Affirmed.
I.
On January 11, 1998, defendant-appellee Emily Klemm was operating a vehicle owned by defendant-appellee David Foley, when she collided with a vehicle being operated by plaintiff-appellant Timothy Harrison. Klemm was not a licensed driver, only having had a learner's permit. Harrison was on duty as a City of Oakwood police officer at the time the collision occurred. As a result of his injuries sustained during the accident, Harrison filed suit against Klemm, Foley, the City of Oakwood, and the Ohio Bureau of Workers' Compensation. The only allegation against Foley was a claim that he negligently entrusted his vehicle to Klemm.
Foley's deposition was taken on March 17, 2000. He testified that at the time of the accident, Klemm was staying at his house while her parents were out of town. He further testified that on the night of the accident, he was asleep in his bedroom when Klemm asked him to drive her somewhere. Foley testified that he declined to drive her, and he went back to sleep. He testified that Klemm later telephoned him to inform him that she had been involved in the accident. According to his testimony, Foley did not give Klemm permission to drive his car, and in fact, was not aware that she had taken his car until she called regarding the accident.
Foley filed a motion for summary judgment and filed his deposition as evidence in support thereof. Harrison filed a response to the motion, in which he argued that Foley had given Klemm permission to use his vehicle. In support, he attached the affidavit of Oakwood police officer, Stephen Tankersley, who investigated the accident. In the affidavit Tankersley averred that "Ms. Klemm advised that the vehicle she was operating was owned by David Foley *," and that she "further stated that she was operating said vehicle with the permission and approval of the owner, David Foley."
The trial court granted Foley's motion for summary judgment. The trial court's decision was based on its finding that the statement in Tankersley's affidavit regarding whether Foley had permitted Klemm to drive his car constituted hearsay, and was therefore inadmissible for purposes of determining the merits of the motion. From this judgment, Harrison appeals.
II.
The sole assignment of error presented by Harrison is as follows:
THE TRIAL COURT COMMITTED PREJUDICIAL ERROR WHEN IT FOUND THAT DEFENDANT DAVID FOLEY WAS ENTITLED TO SUMMARY JUDGMENT AS A MATTER OF LAW WHEN GENUINE ISSUES OF MATERIAL FACT EXISTED REGARDING DEFENDANT FOLEY'S ALLEGED NEGLIGENT ENTRUSTMENT OF HIS AUTOMOBILE TO DEFENDANT KLEMM.
Harrison contends that the trial court erred by rendering summary judgment in favor of Foley. In support, he argues that the affidavit of Officer Tankersley creates a genuine issue of fact whether Foley permitted Klemm to use his vehicle.
We begin by noting that our review of summary judgment is de novo. L
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