Kimmel v. Lowe's, Inc.Kimmel v. Lowe's, Inc.
Rendered on the 7th day of January, 2011.
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Mark J. Bamberger, Atty. Reg. No. 0082053, 8 S. 3rd Street, Tipp City, OH 45371 Attorney for Plaintiffs-Appellants
Charles C. Warner, Atty. Reg. No. 0023052, 41 South High Street, Suite 2900, Columbus, OH 43215; Caroline H. Gentry, Atty. Reg. No. 0066138, One South Main Street, Suite 1600, Dayton, OH 45402 Attorneys for Defendants-Appellees
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GRADY, J.:
{¶ 1} Plaintiffs, Terry Kimmel and Toni Kimmel (“the Kimmels“), appeal from an order granting summary judgment in favor of Defendants, Lowe’s Inc., and others.
{¶ 2} Terry Kimmel was hired as a delivery driver at Lowe’s
{¶ 3} On June 15, 2009, the Kimmels commenced an action against Lowe’s, Bowman, and other employees of Lowe’s, alleging causes of action of negligence, civil conspiracy, unlawful discriminatory practices, intentional and negligent infliction of emotional distress, and loss of consortium. Defendants moved for summary judgment on all claims asserted in the Complaint. (Dkt. 16.) On March 16, 2010, the trial court granted Defendants’ motion for summary judgment. (Dkt. 22.) The Kimmels filed a timely notice of appeal.
FIRST ASSIGNMENT OF ERROR
{¶ 4} “THE TRIAL COURT ERRED BY GRANTING SUMMARY JUDGMENT IN FAVOR OF THE DEFENDANTS ON THE PLAINTIFF’S CLAIM OF HOSTILE WORK ENVIRONMENT.”
{¶ 5} When reviewing a trial court’s grant of summary judgment, an appellate court conducts a de novo review. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 1996-Ohio-336. “De Novo review means that this court uses the same standard that the trial court should have used, and we examine
{¶ 6} Terry Kimmel alleged a hostile work environment claim pursuant to
{¶ 7} “It shall be an unlawful discriminatory practice for any employer, because of the race, color, religion, sex, military status, national origin, disability, age, or ancestry of any person . . . to discriminate against that person . . . .”
{¶ 8} To establish a prima facie case of hostile work environment pursuant to
{¶ 9} “Fortunately or unfortunately, not all upsetting or even
{¶ 10} Kimmel did not allege in his complaint or submit any evidence in response to the summary judgment motion that supports a finding that he was a member of a protected class, was participating in a protected activity, or was protected by a clear public policy. Therefore, the trial court properly granted summary judgment on his hostile work environment claim.
{¶ 11} The first assignment of error is overruled.
SECOND ASSIGNMENT OF ERROR
{¶ 12} “THE TRIAL COURT ERRED BY GRANTING SUMMARY JUDGMENT IN FAVOR OF THE DEFENDANTS ON THE PLAINTIFF’S CLAIM OF INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS.”
{¶ 13} To establish a claim for intentional infliction of emotional distress, the plaintiff must prove that: (1) the defendant either intended to cause emotional distress or knew or
{¶ 14} Upon a motion for summary judgment, the moving party bears the initial burden of showing that no genuine issue of material fact exists for trial. Dresher v. Burt (1996), 75 Ohio St.3d 280, 292-93. Once the moving party satisfies its burden, the nonmoving may not rest upon the mere allegations or denials of the party’s pleadings. Id.;
{¶ 16} We agree with the trial court that the evidence submitted by Defendants demonstrate that Defendants’ actions do not rise to the level of those required to establish intentional infliction of emotional distress. Therefore, Defendants met their
{¶ 17} “There was abundant and robust evidence discussed in the complaint itself and further available for cross-examination that the actions of the named Defendants herein led directly and causally to mental, physical, and financial injury to both
Plaintiffs. Medical records, billing records, and direct testimony are readily available to show the direct and significant impact the Defendants’ actions had on both Plaintiffs.” (Dkt. 19, p. 5-6.)
Plaintiffs’ conclusory statements are insufficient to create a genuine issue of material fact on their claim of intentional infliction of emotional distress.
{¶ 18} The second assignment of error is overruled.
THIRD ASSIGNMENT OF ERROR
{¶ 19} “THE TRIAL COURT ERRED BY GRANTING SUMMARY JUDGMENT IN FAVOR OF THE DEFENDANTS ON THE PLAINTIFF’S CLAIM OF CIVIL CONSPIRACY.”
{¶ 20} A claim for civil conspiracy requires proof of “a malicious combination of two or more persons to injure another in person or property, in a way not competent for one alone, resulting in actual damage.” Kenty v. Transamerica Premium Ins. Co., 72 Ohio St.3d 415, 419, 1995-Ohio-61, citations omitted. “An underlying unlawful act is required before a civil conspiracy claim can succeed.” Williams v. Aetna Fin. Co., 83 Ohio St.3d 464, 475, 1998-Ohio-294, citations omitted.
{¶ 21} The Kimmels failed to submit evidence that a civil conspiracy existed or that an underlying tortious act occurred. Rather, the Kimmels argue on appeal that “[t]he mere fact that Lowe’s failed to reconcile the issues between Bowman and Kimmel
{¶ 22} We note that the Kimmels did not challenge in their assignments of error the trial court’s finding that their claims for negligence, unlawful discriminatory practices, and negligent infliction of emotional distress must fail. Therefore, the Kimmels cannot rely on any of these causes of action to form the basis for their civil conspiracy claim. Based on our disposition of the previous two assignments of error, no causes of action remain to establish that an underlying tort occurred.
{¶ 23} The third assignment of error is overruled.
FOURTH ASSIGNMENT OF ERROR
{¶ 24} “THE TRIAL COURT ERRED BY GRANTING SUMMARY JUDGMENT IN FAVOR OF THE DEFENDANTS ON THE PLAINTIFF’S CLAIM OF LOSS OF CONSORTIUM.”
{¶ 25} “A loss of consortium claim is a derivative cause of action dependant upon the existence of a primary cause of action.” Miller v. City of Xenia, Greene App. No. 2001CA82, 2002-Ohio-1303. Based on our disposition of the previous three assignments of
{¶ 26} The assignments of error are overruled. The judgment of the trial court will be affirmed.
BROGAN, J. and FAIN, J. concur.
Copies mailed to:
Mark J. Bamberger, Esq.
Caroline H. Gentry, Esq.
Charles C. Warner, Esq.
Hon. Mary Wiseman