Vinar v. City of Bexley , 142 Ohio App. 3d 341 ( 2001 )

I concur with the majority that the judgment of the trial court should be reversed. However, I write separately as I believe a factual dispute exists as to "the character of the property upon which the injury occurs and the type of activities for which the property is held open to the public." Miller v. Dayton (1989), 42 Ohio St. 3d 113, 114.

Here, the City of Bexley, as the party moving for summary judgment, had the burden under Civ.R. 56(C) to show that there was no genuine issue of material fact and that it was entitled to judgment as a matter of law. In order to carry this burden, the Ohio Supreme Court has explained that, "the movant must be able to point to evidentiary materials of the type listed in Civ.R. 56(C) that a court is to consider in rendering summary judgment." Dresher v. Burt (1996), 75 Ohio St. 3d 280, 292-293. Thus, in assessing a motion for summary judgment, courts are restricted to considering the types of evidence specifically enumerated by Civ.R. 56(C). See Carrabine Constr. Co. v. Chrysler Realty Corp. (1986),25 Ohio St. 3d 222, 225. A representation made at oral argument before this court is not included within the terms of Civ.R. 56(C) and may not be considered by a court when deciding a motion for summary judgment. See id., at paragraph one of the syllabus (a trial court is precluded from considering supplemental oral testimony introduced for the first time at a hearing on a motion for summary judgment under Civ.R. 56).

Therefore, the city was required to show, by means of the kinds of evidence set forth in Civ.R. 56(C), that the character of the property and the purpose for which it was held open was for recreational use and not as a public roadway. Based on the record before us, I do not believe that it is clear whether the purpose of the roadway through the park is for use as a public thoroughfare, as represented during oral argument, or rather is simply to provide access to the public to visit the mansion or use the park for recreational purposes. Thus, because I believe a genuine issue of material fact exists as to the character of the property upon which plaintiff was injured, I would reverse the grant of summary judgment to the City of Bexley.