Rodger v. McDonald's Restaurants of Ohio, Inc. , 8 Ohio App. 3d 256 ( 1982 )

I concur in the opinion of Judge Jackson but wish to make a few additional observations.

Appellees contend that the failure of appellant to respond in any manner to appellees' motion for summary judgment determines that judgment was properly entered in their favor by the trial court. For the reasons herein stated I do not agree with appellees' contentions.

Under Civ. R. 56(A) and (B), a party may move for summary judgment "with or without supporting affidavits." If a court can determine from the pleadings alone that no genuine issue of material fact exists and that the movant is entitled to judgment as a matter of law, the judgment shall be so entered.

Further, under Civ. R. 56(E), it is provided:

"* * * When a motion for summary judgment is made andsupported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavit or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial." (emphasis added.)

Therefore, where a motion is not supported by affidavits (or other evidentiary materials), the nonmoving party may rest upon his pleadings.

It follows that where a movant provides evidentiary support for only some of the facts which must be shown to entitle him to a judgment on a claim, the nonmoving party may rest upon his pleadings as to those facts which are not so supported. See Mason v. Roberts (1971), 35 Ohio App. 2d 29 [62 O.O.2d 346]. As such, the trial court may grant partial summary judgment only or simply limit its order to a specification of those facts which are without controversy. See Civ. R. 56(A) and (D).

Appellant makes two basic claims in the case sub judice: (1) prior to the assault, appellees' agents and/or employees knew or should have known that appellant was in danger of being assaulted and (2) after the assault had begun, appellees' agents and/or employees knew or should have known that appellant was being assaulted; in both of which cases adequate corrective action should have been taken.

With respect to the first claim, it is unrebutted that Mrs. Finklea had no personal knowledge of any prior assaults or other acts of violence in the restaurant. However, from this fact alone reasonable minds could not necessarily conclude that appellees' agents and/or employees had no such prior information.

In her affidavit Mrs. Finklea states that she is a stockholder in the corporation that operates the restaurant. She does not aver facts sufficient to demonstrate that she is an officer, agent or employee of the corporation, or that she is otherwise in a position to know whether prior incidents occurred on the premises.

With respect to the second claim, genuine issues of fact, raised by the pleadings, remain to be resolved as to whether any employees and/or agents of the corporation knew or should have known that appellant was being assaulted and whether they could have come to appellant's aid. It is up to the appellees, as movants, to produce supporting materials in their favor on these issues before appellant is required to produce countervailing materials.

Accordingly, I concur in the judgment of this court reversing the judgment of the court below.