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.
KINGSLEY HONG and BRENDAN P. KELLEY, Attorneys at Law, for
DECISION AND JOURNAL ENTRY
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.
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.
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.
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
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.
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).
The Supreme Court of Ohio has set forth the nature of this
[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
Dresher v. Burt, 75 Ohio St.3d 280, 293 (1996).
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).
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].
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.
The co-worker's deposition testimony ...