FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF
SUMMIT, OHIO CASE No. CV 2014-09-4146
J. GUTBROD, Attorney at Law, for Appellant.
VICTORIA L. VANCE and MICHAEL J. RUTTINGER, Attorneys at Law,
S. HURA, Attorney at Law, for Appellee.
DECISION AND JOURNAL ENTRY
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.
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.
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.
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.
Mr. Smrtka timely appeals, raising one assignment of error
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.
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.
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).
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).
"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).
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 ...