Burns v. Lawson Co.7/30/1997
MILLIGAN, Judge.
This is an appeal from a summary judgment by the Summit County Court of Common Pleas, dismissing the employment intentional tort claim of Stephen Burns ("the employee") and finding in favor of the Lawson Company, d.b.a. Dairy Mart ("the employer" or "the convenience store" or "the store"). We affirm.
In the early morning hours of October 8, 1992, the employee was shot and severely injured while on duty during an armed robbery of a Dairy Mart convenience store in Akron. As a result of the incident, the employee filed a complaint against the employer asserting an "employment intentional tort" theory of liability. The employee argued that he was entitled to be compensated because he had been required to work in a store known as "the combat zone" for its history of criminal activity, despite knowledge by the convenience store that he was substantially certain to be injured. After discovery, the employer moved for summary judgment, contending that there was an absence of evidence of knowledge with "substantial certainty" of harm, one of the three elements of the employee's claim. The employee filed a response in opposition, alleging that the evidence was legally sufficient, and the employer replied to the employee's arguments against summary judgment. The motion, opposing memorandum, and reply were supported by various affidavits, exhibits, interrogatories, and a deposition. After consideration, the trial court found in favor of the employer. The employee appeals.
"The trial court erred in granting summary judgment to [the employer], as genuine issues of material fact exist regarding whether or not [the employer] committed an intentional tort against [the employee]."
The employee contends that the trial court erred in finding that the evidence was insufficient to establish a jury question on his intentional tort claim against the employer. His contention lacks merit.
Summary judgment is used to resolve relevant issues of law. It is not a "disfavored procedural shortcut, but rather * * * designed `to secure the just, speedy and inexpensive determination of every action.' Fed. Rule Civ. Proc. 1 * * *." Celotex Corp. v. Catrett (1986), 477 U.S. 317, 327, 106 S.Ct. 2548, 2555, 91 L.Ed.2d, 265, 276. The standard is well established. A motion for summary judgment must be granted if the moving party demonstrates that there is nsgenuine issue as to any material fact, the moving party is entitled to judgment as a matter of law, and it appears from the evidence that reasonable minds can come to but one conclusion, and that conclusion is adverse to the party opposing the motion. Civ.R. 56(C). See, also, State ex. rel. Howard v. Ferreri (1994), 70 Ohio St.3d 587, 589, 639 N.E.2d 1189, 1192-1193.
Once the moving party has satisfied its initial burden, the nonmoving party then has a reciprocal burden to show that there is, indeed, a genuine issue for trial. See, e.g., Vahila v. Hall (1997), 77 Ohio St.3d 421, 429, 674 N.E.2d 1164, 1170-1171; Dresher v. Burt (1996), 75 Ohio St.3d 280, 293, 662 N.E.2d 264, 273-274. While a court must view the evidence most strongly in favor of the party opposing the motion for summary judgment, the motion forces that party to produce evidence on all issues for which that party bears the burden of production at trial. Wing v. Anchor Media Ltd. of Texas (1991), 59 Ohio St.3d 108, 570 N.E.2d 1095, paragraph three of the syllabus; Mitseff v. Wheeler (1988), 38 Ohio St.3d 112, 115, 526 N.E.2d 798, 801-802. Specifically, "in an action by an employee against his employer alleging an intentional tort, upon motion for summary judgment by the defendant employer, the plaintiff
Page 1 2 3 4 Ohio Employee Leasing Services
Employee Leasing Services
|