Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Smrtka v. Boote

Court of Appeals of Ohio, Ninth District, Summit

March 31, 2017

PHILIP SMRTKA Appellant
v.
MARVIN L. BOOTE, et al. Appellee

         APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CV 2014-09-4146

          JAMES J. GUTBROD, Attorney at Law, for Appellant.

          VICTORIA L. VANCE and MICHAEL J. RUTTINGER, Attorneys at Law, for Appellee.

          MARK S. HURA, Attorney at Law, for Appellee.

          DECISION AND JOURNAL ENTRY

          CALLAHAN, JUDGE.

         {¶1} Appellant, Philip Smrtka, appeals the judgment of the Summit County Court of Common Pleas granting summary judgment to Appellee, Gary Domanick, D.C., dba Richfield Chiropractic Center. For the reasons set forth below, this Court affirms.

         I.

         {¶2} Dr. Domanick is a chiropractor. Mr. Smrtka, Marvin and Marcia Boote, and their dog, Luke, are all patients of Dr. Domanick. On the day of the incident, Mrs. Boote and Luke were in the waiting room awaiting chiropractic treatment. As Mr. Smrtka was leaving Dr. Domanick's office, he attempted to pet Luke's chin, and was bit on the hand.

         {¶3} At issue before this Court are Mr. Smrtka's claims against Dr. Domanick for negligence, chiropractic malpractice, and negligence per se. Each claim against Dr. Domanick is based upon Luke biting Mr. Smrtka's hand.

         {¶4} Mr. Smrtka filed a partial motion for summary judgment as to his claims for negligence and negligence per se. Dr. Domanick filed a cross-motion for summary judgment as to all three claims. The trial court denied Mr. Smrtka's partial motion for summary judgment and granted Dr. Domanick's motion for summary judgment.

         {¶5} Mr. Smrtka timely appeals, raising one assignment of error for review.

         II.

         ASSIGNMENT OF ERROR

         THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT TO DEFENDANT/APPELLEE GARY DOMANICK, DC, dba RICHFIELD CHIROPRACTIC CENTER, AND IN OVERRULING THE MOTION FOR SUMMARY JUDGMENT ON THE ISSUE OF NEGLIGENCE FILED BY PLAINTIFF/APPELLANT PHILIP SMRTKA. IN PARTICULAR, THE TRIAL COURT ENGAGED IN FINDING FACTS AND WEIGHING THE EVIDENCE RATHER THAN FOLLOWING SUMMARY JUDGMENT PROCEDURE.

         Standard of Review

         {¶6} Appellate courts consider an appeal from summary judgment under a de novo standard of review. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105 (1996). This Court uses the same standard that the trial court applies under Civ.R. 56(C), viewing the facts of the case in the light most favorable to the non-moving party and resolving any doubt in favor of the non-moving party. Viock v. Stowe-Woodward Co., 13 Ohio App.3d 7, 12 (6th Dist.1983). Accordingly, this Court stands in the shoes of the trial court and conducts an independent review of the record.

         {¶7} Summary judgment is proper under Civ.R. 56 when: (1) no genuine issue as to any material fact exists, (2) the party moving for summary judgment is entitled to judgment as a matter of law, and (3) viewing the evidence most strongly in favor of the non-moving party, reasonable minds can only reach one conclusion, and that conclusion is adverse to the non-moving party. Civ.R. 56(C); Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327 (1977).

         {¶8} Summary judgment consists of a burden-shifting framework. The movant bears the initial burden of demonstrating the absence of genuine issues of material fact concerning the essential elements of the nonmoving party's case. Dresher v. Burt, 75 Ohio St.3d 280, 292 (1996). Specifically, the moving party must support the motion by pointing to some evidence in the record of the type listed in Civ.R. 56(C). Id. at 292-93. Once the moving party satisfies this burden, the non-moving party has a reciprocal burden to "set forth specific facts showing that there is a genuine issue for trial." Id. at 293. The non-moving party may not rest upon the mere allegations or denials in his pleadings, but instead submit evidence as outlined in Civ.R. 56(C). Id. at 293; Civ.R. 56(E).

         {¶9} "In ruling on a motion for summary judgment, a trial court may not weigh the evidence and determine issues of fact." Horner v. Elyria, 9th Dist. Lorain No. 13CA010420, 2015-Ohio-47, ¶ 10. It also may not determine the credibility of the evidence. Turner v. Turner, 67 Ohio St.3d 337, 341 (1993). Rather, the trial court must examine the evidence, taking all permissible inferences and resolving questions of credibility in favor of the non-moving party. Dupler v. Mansfield Journal Co., Inc., 64 Ohio St.2d 116, 121 (1980).

         {¶10} Mr. Smrtka and Dr. Domanick filed cross-motions for summary judgment on the claims of negligence and negligence per se. Mr. Smrtka's partial motion was ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.