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Irvin v. Brown

Court of Appeals of Ohio, Fifth District

July 1, 2013

PATRICIA L. IRVIN, ET AL Plaintiffs-Appellees
v.
CHARLES BROWN, ET AL Defendants-Appellants

Civil appeal from the Guernsey County Court of Common Pleas, Case No. 2011CV000445

For Plaintiffs-Appellees KIMBERLY YOUNG Baker, Dublikar, Beck, Wiley & Mathews

For Defendants-Appellants JACK BAKER Elk & Elk Co., Ltd

JUDGES: Hon. W. Scott Gwin, P. J. Hon. John W. Wise, J. Hon. Craig R. Baldwin, J.

OPINION

Gwin, P.J.

{¶1} Appellants appeal the November 16, 2012 judgment entry of the Guernsey County Court of Common Pleas denying their motion for summary judgment.

Facts & Procedural History

{¶2} Appellees Patricia and James Irvin attended the Guernsey County Fair on September 17, 2009. After they walked around the fair and had something to eat on the midway, appellees attended a truck and tractor pull event at the grandstand. As they exited the truck and tractor pull, appellant Charles Brown ("Brown") offered them a ride to their vehicle on a courtesy golf cart. Brown was an employee of appellant Guernsey County Agricultural Society. When they reached their vehicle, Brown stopped the golf cart and Mr. Irvin exited the golf cart without incident. When Mrs. Irvin exited the vehicle, she fell and suffered a fractured wrist. Mrs. Irvin states Brown began accelerating the golf cart when she attempted to exit the cart, causing her to fall to the ground. Brown states he asked if everyone was off the cart and thought he heard Mr. Irvin say "yes, " and when he subsequently stepped on the gas pedal, Mrs. Irvin was laying beside the golf cart on the ground.

{¶3} Appellees filed a complaint for negligence against Charles Brown, Guernsey County Fairgrounds, Guernsey County Fair Board, Guernsey County Commissioners, and the Guernsey County Agricultural Society on September 14, 2011. On December 21, 2011, appellees voluntarily dismissed defendants Guernsey County Fairgrounds, Guernsey County Fair Board, and Guernsey County Commissioners. Appellants filed a motion for summary judgment on August 31, 2012, and argued they were entitled to sovereign immunity in this case. On November 16, 2012, the trial court denied appellants' motion for summary judgment. The trial court found that a golf cart is a motor vehicle and the truck and tractor pull is a discrete proprietary function of the Guernsey County Agricultural Society. Further, that reasonable minds could differ upon whether Brown's conduct was reckless. Appellants appeal from this entry and assign the following assignments of error on appeal:

{¶4} "I. THE TRIAL COURT ERRED IN FAILING TO GRANT APPELLANTS' MOTION FOR SUMMARY JUDGMENT ON SOVEREIGN IMMUNITY AS NO EXCEPTIONS TO IMMUNITY ARE APPLICABLE AND THE SUBJECT GOLF CART WAS NOT A MOTOR VEHICLE.

{¶5} "II. THE TRIAL COURT ERRED IN FAILING TO GRANT SUMMARY JUDGMENT IN FAVOR OF APPELLANT CHARLES BROWN AS AN EMPLOYEE OF A POLITICAL SUBDIVISION WHO IS IMMUNE FOR NEGLIGENT CONDUCT WITHIN THE SCOPE AND COURSE OF HIS EMPLOYMENT."

Summary Judgment

{¶6} Civ.R. 56 states, in pertinent part:

"Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue of 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 be rendered unless it appears from the evidence or stipulation, and only from the evidence or stipulation, 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, that party being entitled to have the evidence or stipulation construed mostly strongly in the party's favor. A summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages."

{¶7} A trial court should not enter a summary judgment if it appears a material fact is genuinely disputed, nor if, construing the allegations most favorably towards the non-moving party, reasonable minds could draw different conclusions from the undisputed facts. Hounshell v. Am. States Ins. Co., 67 Ohio St.2d 427, 424 N.E.2d 311 (1981). The court may not resolve any ambiguities in the evidence presented. Inland Refuse Transfer Co. v. Browning-Ferris Inds. of Ohio, Inc., 15 Ohio St.3d 321, 474 N.E.2d 271 (1984). A fact is material if it affects the outcome of the case under the applicable substantive law. Russell v. Interim Personnel, Inc., 135 Ohio App.3d 301, 733 N.E.2d 1186 (6th Dist. 1999).

{¶8} When reviewing a trial court's decision to grant summary judgment, an appellate court applies the same standard used by the trial court. Smiddy v. The Wedding Party, Inc., 30 Ohio St.3d 35, 506 N.E.2d 212 (1987). This means we review the matter de novo. Doe v. Shaffer, 90 Ohio St.3d 388, 2000-Ohio-186, 738 N.E.2d 1243.

{¶9} The party moving for summary judgment bears the initial burden of informing the trial court of the basis of the motion and identifying the portions of the record which demonstrates absence of a genuine issue of fact on a material element of the non-moving party's claim. Drescher v. Burt, 75 Ohio St.3d 280, 662 N.E.2d 264 (1996). Once the moving party meets its initial burden, the burden shifts to the non-moving party to set forth specific facts demonstrating a genuine issue of material fact does exist. Id. The non-moving party may not rest upon the allegations and denials in the pleadings, but instead must submit some evidentiary materials showing a genuine dispute over material facts. Henkle v. Henkle, 75 Ohio App.3d 732, 600 N.E.2d 791 (12th Dist. 1991).

{¶10} Generally, an order denying a motion for summary judgment is not a final appealable order subject to appellate review. However, O.R.C. 2744.02(C) states that "[a]n order that denies a political subdivision or an employee of a political subdivision the benefit of any alleged immunity from liability as provided in this chapter or any other provision of the law is a final order." Further, the Ohio Supreme Court has held, "when a trial court denies a motion in which a political subdivision or its employee seeks immunity under R.C. Chapter 2744, that order denies the benefit of an alleged immunity and there is therefore a final, appealable order pursuant to R.C. 2744.02(C)." Hubbell v. City of Xenia, 115 Ohio St.3d 77 at syllabus, 20 ...


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