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Williams v. Goodyear Tire & Rubber Co.

Court of Appeals of Ohio, Ninth District, Summit

May 31, 2017

RUTH WILLIAMS Appellant
v.
GOODYEAR TIRE & RUBBER COMPANY Defendant and AKRON GASKET & PACKING ENTERPRISES Appellee

         APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. AC-2014-04-2035

          JESSICA M. BACON, Attorney at Law, for Appellant.

          LAURA KINGSLEY HONG and BRENDAN P. KELLEY, Attorneys at Law, for Appellee.

          DECISION AND JOURNAL ENTRY

          TEODOSIO, Judge.

         {¶1} Appellant, Ruth Williams, appeals the order of the Summit County Court of Common Pleas granting summary judgment in favor of Akron Gasket & Packing Enterprises, Incorporated. This Court reverses and remands.

         I.

         {¶2} On April 17, 2014, Ruth Williams, individually and as the executrix for the estate of Donald Williams, filed a complaint for product liability, negligence, wrongful death, and intentional tort against multiple defendants stemming from her husband Donald Williams' potential exposure to asbestos-containing materials during his employment at PPG Industries and Goodyear Tire & Rubber Company ("Goodyear"). This exposure was alleged to have caused Mr. Williams' subsequent illness and death. Appellee, Akron Gasket & Packing Enterprises, Inc. ("Akron Gasket"), was alleged to have supplied asbestos-containing tape to which Mr. Williams was exposed during his employment at Goodyear.

         {¶3} On April 20, 2016, the trial court granted Akron Gasket's motion for summary judgment, finding that no evidence had been presented to suggest that Mr. Williams had been exposed to asbestos as the result of any product supplied to Goodyear by Akron Gasket. Ms. Williams now appeals, raising three assignments of error.

         II.

         ASSIGNMENT OF ERROR ONE

THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT IN FAVOR OF AKRON GASKET AND PACKING COMPANY ON THE BASIS [THAT] CO[-]WORKER TESTIMONY WAS HEARSAY AS NOT BASED ON PERSONAL KNOWLEDGE.

         {¶4} In her first assignment of error, Ms. Williams argues the trial court erred in finding that the testimony of Mr. Williams' co-worker was hearsay and in granting summary judgment on that basis. We agree.

         {¶5} Appellate review of an award of summary judgment is de novo. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105 (1996). Summary judgment is appropriate under Civ.R. 56 when: (1) no genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) viewing the evidence most strongly in favor of the nonmoving party, reasonable minds can come to but one conclusion and that conclusion is adverse to the nonmoving party. Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327 (1977), citing Civ.R. 56(C). A court must view the facts in the light most favorable to the non-moving party and must resolve any doubt in favor of the non-moving party. Murphy v. Reynoldsburg, 65 Ohio St.3d 356, 358-359 (1992). A trial court does not have the liberty to choose among reasonable inferences in the context of summary judgment, and all competing inferences and questions of credibility must be resolved in the nonmoving party's favor. Perez v. Scripps- Howard Broadcasting Co., 35 Ohio St.3d 215, 218 (1988).

         {¶6} The Supreme Court of Ohio has set forth the nature of this burden-shifting paradigm:

[A] party seeking summary judgment, on the ground that the nonmoving party cannot prove its case, bears the initial burden of informing the trial court of the basis for the motion, and identifying those portions of the record that demonstrate the absence of a genuine issue of material fact on the essential element(s) of the nonmoving party's claims. The moving party cannot discharge its initial burden under Civ.R. 56 simply by making a conclusory assertion that the nonmoving party has no evidence to prove its case. Rather, the moving party must be able to specifically point to some evidence of the type listed in Civ.R. 56(C) which affirmatively demonstrates that the nonmoving party has no evidence to support the nonmoving party's claims. If the moving party fails to satisfy its initial burden, the motion for summary judgment must be denied. However, if the moving party has satisfied its initial burden, the nonmoving party then has a reciprocal burden outlined in Civ.R. 56(E) to set forth specific facts showing that there is a genuine issue for trial and, if the nonmovant does not so respond, summary judgment, if appropriate, shall be entered against the nonmoving party.

Dresher v. Burt, 75 Ohio St.3d 280, 293 (1996).

         {¶7} With regard to an asbestos liability case, the plaintiff has the burden of proving exposure to asbestos that was manufactured, supplied, installed, or used by the defendant and that the product was a substantial factor in causing the plaintiffs injury. Horton v. Harwick, 73 Ohio St.3d 679 (1995), syllabus; R.C. 2307.96(B).

         {¶8} The evidence before the trial court on the motion for summary judgment consisted in large part of the deposition testimony of one of Mr. Williams' co-workers. In its judgment entry, the trial court found that the co-worker had "no personal knowledge concerning whether asbestos-containing tape that was used [sic] supplied by [Akron Gasket]" or if "it was a substantial factor that ultimately led to Mr. Williams' death." The trial court went on to find that the co-worker "provide[d] hearsay testimony concerning the asbestos tape in use at Goodyear, " and that "such is not satisfactory evidence for * * * summary judgment analysis." The trial court further explained: "[T]he plaintiff cannot now establish that those products in use at Goodyear were supplied by [Akron Gasket]. Without such product identification, there can be no determination that the tape was a substantial factor in causing Mr. Williams' illness and death." The trial court then reiterated:

The evidence presented demonstrates that although the defendant may have sold, produced, supplied and/or manufactured some asbestos-containing products, the plaintiff has failed to demonstrate that Mr. Williams used or came into contact with those specific asbestos-containing products while working at Goodyear and that those products were a substantial factor in causing his illness and subsequent death. No evidence has been presented to suggest that Mr. Williams was exposed to asbestos as a result of any product supplied to Goodyear by [Akron Gasket].

         These findings made by the trial court-indicating that the co-worker had no personal knowledge of the supplier of the tape to Goodyear-are not supported by the evidence.

         {¶9} The co-worker's deposition testimony ...


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