DocketNumber: No. 81456.
Judges: <bold>ANNE L. KILBANE, Presiding Judge</bold>.
Filed Date: 4/17/2003
Status: Non-Precedential
Modified Date: 4/18/2021
{¶ 13} I respectfully dissent because I disagree with the majority's conclusion that there are genuine issues of material fact as to whether Caponi's injuries were received in the course of, and arising out of, her employment.
{¶ 14} The majority finds sufficient evidence demonstrating Caponi was injured "in the course of employment" to withstand summary judgment because they assume she was required to meet with other CVB employees at the Howl at the Moon ("the bar") after cleaning up the Heartland trade show. In making this assumption, the majority relies on Caponi's affidavit wherein she states that the invitation to meet at the bar "did not seem in any way to be a voluntary request that I was free to decline."22
{¶ 15} However, at a prior deposition, Caponi stated under oath that she was not required to go to the bar. A party cannot defeat a motion for summary judgment by providing an affidavit which contradicts and is inconsistent with prior sworn testimony. Reasoner v. Bill WoesteChevrolet, Inc. (1999),
{¶ 16} In Fisher v. Mayfield (1990),
{¶ 17} The majority also finds that the Powerhouse parking lot may have been within the "zone of employment" or may constitute a "special hazard" because they find the evidence unclear as to whether the CVB "might have had actual or constructive control over * * * that location." However, there is no evidence in the record to suggest that the CVB might have had actual or constructive control over the Powerhouse parking lot. Further, Caponi's risk of falling in the parking lot was not distinctive in nature or qualitatively greater than the risk to the general public and, thus, was not a "special hazard." See Powers v. Frank Z Chevrolet
(1995),