815 N.E.2d 1132 | Ohio Ct. App. | 2004
{¶ 1} Appellant, Laura Petersheim, appeals the decision of the Court of Common Pleas, Licking County, that granted summary judgment in favor of defendants-appellees, Taylor and Catherine Corum, in a lawsuit brought by appellant, individually and as the administrator of Steven Petersheim, her late husband.
{¶ 2} Appellees are the owners of a 238-acre farm in Licking County, Ohio. Shortly after 10 P.M. on August 4, 2000, Steven Petersheim was driving on County Road 40 when an Angus bull owned by appellees entered the roadway in the path of Steven's vehicle. The ensuing collision resulted in Steven's death.
{¶ 3} Appellant filed a wrongful-death lawsuit against appellees on July 5, 2002, alleging that appellees had "unlawfully and/or negligently caused and/or allowed the bull to run at large." Appellees thereafter answered and filed a motion for summary judgment. In June 2003, appellant filed a memorandum in opposition. Appellees thereafter filed a motion to strike portions of appellant's memorandum. The trial court conducted a hearing on all pretrial motions on August 12, 2003.
{¶ 4} In a judgment entry dated August 28, 2003, the trial court granted summary judgment in favor of appellees and struck those portions of appellant's memorandum in opposition to summary judgment that argued that there existed a presumption of negligence pursuant to R.C.
{¶ 5} Appellant timely appealed and raises the following two assignments of error:
{¶ 6} "I. The trial court erred in striking portions of plaintiff-appellant Laura Petersheim's (`Petersheim') brief in opposition to summary judgment.
{¶ 7} "II. The trial court erred in granting summary judgment to defendants-appellees Taylor and Catherine Corum (`Corum')."
{¶ 8} We will address the assigned errors in reverse order. In her second assignment of error, appellant argues that the trial court erred in granting summary judgment in favor of appellees. We agree.
{¶ 9} Summary judgment proceedings present the appellate court with the unique opportunity of reviewing the evidence in the same manner as the trial court. Smiddy v. Wedding Party, Inc. (1987),
{¶ 10} Pursuant to that rule, a trial court may not enter summary judgment if it appears that a material fact is genuinely disputed. The party moving for summary judgment bears the initial burden of informing the trial court of the basis for its motion and identifying those portions of the record that demonstrate the absence of a genuine issue of material fact. The moving party may not make a conclusory assertion that the nonmoving party has no evidence to prove its case. The moving party must specifically point to some evidence that demonstrates that the nonmoving party cannot support its claim. If the moving party satisfies this requirement, the burden shifts to the nonmoving party to set forth specific facts demonstrating that there is a genuine issue of material fact for trial. Vahila v. Hall (1997),
{¶ 11} There is no dispute that appellee Taylor Corum was the owner of the escaped bull. Corum recalled that he purchased the animal at an auction on August 2, 2000, two days before the accident. The Corum farm contained two pertinent areas: a fenced-in wooden corral near the house and barn and a larger pasture bordered by a wire-and-wood-post perimeter fence. According to Corum, *380 he last saw the bull alive on 4 p.m. on August 4, 2000, when he took a break from baling hay and observed it in the corral. Corum testified that the corral gate was secure. Corum noted that the corral fence was not damaged and the corral gates were not open. After he was notified by the State Highway Patrol about the accident on August 5, 2000, and he discovered the bull missing, Corum discovered a cut 30-foot span of the pasture fence (as opposed to the corral fence), on the north side. The cut fence had been rolled up near a railroad viaduct over the creek located at this spot. Corum did not know who had done this cutting. Corum testified that he observed bull tracks and fresh manure near the creek bank. Appellees contend that "[n]o one can state with any reliability how the bull exited the corral," but theorize that the bull went through the severed section of perimeter fence.
{¶ 12} When livestock escape from a farm and do damage upon a public highway, the owner's liability sounds in negligence for permitting the escape. Reed v. Molnar (1981),
{¶ 13} In regard to the corral issue, in contradiction to Corum's testimony, appellant averred that Corum admitted to her in conversation that he knowingly allowed the bull out of the corral the day of the accident. Based on this, Dr. Carpenter added that allowing a newly purchased bull, unfamiliar with its new *381 surroundings, to go out of a fenced corral would be improper and unreasonable. He otherwise was of the opinion that failure to check on a new bull for nearly 18 hours in a corral so close to the owner's home was unreasonable.
{¶ 14} We therefore find that summary judgment was improper, as reasonable minds could come to different conclusions regarding whether Corum's maintenance and monitoring of the perimeter fence, as well as his actions or omissions regarding the use of the corral, resulted in a violation of appellees' duty to take reasonable precautions to prevent the animal's escape onto a public roadway and whether appellees' potential breach was the proximate cause of the accident.
{¶ 15} Appellant's second assignment of error is therefore sustained.
{¶ 16} In her first assignment of error, appellant contends that the trial court erred in striking portions of her memorandum in opposition to summary judgment pertaining to R.C.
{¶ 17} Based on our holding that summary judgment was improper pursuant to appellant's second assignment of error, any alleged errors in the trial court's striking of portions of appellant's memorandum rendered moot.
{¶ 18} Appellant's first assignment of error is hereby found to be moot.
{¶ 19} For the reasons stated in the foregoing opinion, the judgment of the Court of Common Pleas, Licking County, Ohio, is hereby reversed and the cause is remanded for further proceedings consistent with this opinion.
Judgment reversed and cause remanded.
EDWARDS and BOGGINS, JJ., concur. *382