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Vadaj v. French

Court of Appeals of Ohio, Eighth District, Cuyahoga

April 13, 2017

ROBIN VADAJ, ET AL. PLAINTIFFS-APPELLANTS
v.
SHANE M. FRENCH, ET AL. DEFENDANTS-APPELLEES

         Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-15-847217

          ATTORNEYS FOR APPELLANTS Thomas L. Brunn Alison D. Ramsey Brunn Law Firm Co. L.P.A.

          ATTORNEYS FOR APPELLEES For Michael W. Toomey Andrea J. Latessa, Larry W. Zukerman Zukerman, Daiker & Lear Co. L.P.A.

          For Shane M. French Melanie R. Irvin Colleen A. Mountcastle Mark A. Greer Leslie A. Stanard Gallagher Sharp

          BEFORE: McCormack, J., Kilbane, P.J., and Boyle, J.

          JOURNAL ENTRY AND OPINION

          TIM McCORMACK, JUDGE

         {¶1} Plaintiffs-appellants Robin and Mark Vadaj appeal the trial court's granting of summary judgment in favor of defendants-appellees Shane M. French and Michael W. Toomey. For the following reasons, we affirm.

         Procedural History and Substantive Facts

         {¶2} On July 4, 2013, Robin and Mark Vadaj, members of Olde River Yacht Club in Cleveland, Ohio, were on their boat that they kept docked at the club. They had come to the club to watch the city of Cleveland's fireworks show that evening from their boat. After the fireworks show ended, at approximately 11:30 p.m., the Vadajes retired to their cabin and went to bed.

         {¶3} Mrs. Vadaj alleged that she and her husband were awakened at approximately 3:00 a.m. by the sound of an "explosion." The Vadajes got out of bed and proceeded to the stairs to exit the cabin. They did not turn on any lights, as they normally would do upon getting out of bed. Mr. Vadaj ascended the stairs and went to the back deck of the boat. Mrs. Vadaj stated that the explosion startled her. She jumped up out of bed, began to run up the stairs, and she hit her left foot on a step, causing a metatarsal fracture. She explained that she did not see the step because it was dark. Mrs. Vadaj stated that she did not know what the loud sound was until she was out of the boat's cabin and on the deck.

          {¶4} Once on the deck, Mrs. Vadaj was able to determine that the source of the sound was fireworks being set off in a grassy picnic area near the boat docks. She observed two people in the picnic area setting off fireworks in a "fairly hard" rain. The two individuals were later identified as defendants-appellees French and Toomey. The Vadajes allege that the picnic area was approximately 20 feet from their boat; however, French and Toomey contend that the fireworks were ignited more than 40 feet from the Vadajes' boat. Mrs. Vadaj stated in her deposition that because it was raining so hard, one of the fireworks landed on the boat's aft deck.

         {¶5} The Vadajes filed a complaint against French and Toomey for the injury Mrs. Vadaj incurred in hitting her foot on the stairs in her boat's cabin, as well as a claim of the loss of consortium allegedly suffered by Mr. Vadaj.[1] French and Toomey filed motions for summary judgment, which the trial court granted. The Vadajes now appeal the trial court's judgment, contending that there are genuine issues of material fact that remain to be litigated and the trial court erred in granting the defendants-appellees' motions.

         Summary Judgment

         {¶6} Summary judgment is appropriate when: (1) there is no genuine issue of material fact, (2) the moving party is entitled to judgment as a matter of law, and (3) after construing the evidence most favorably for the party against whom the motion is made, reasonable minds can reach only a conclusion that is adverse to the nonmoving party. Civ.R. 56(C)._ Once a moving party satisfies its burden, the nonmoving party may not rest upon the mere allegations or denials of the moving party's pleadings; rather, it has a reciprocal burden of setting ...


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