COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 58821 DOROTHEA A. SKAROUPA, ET AL. : : : : JOURNAL ENTRY Plaintiffs-Appellant: : AND vs. : : OPINION STAM-WIN INC., ET AL. : : : : Defendants-Appellees: : DATE OF ANNOUNCEMENT OF DECISION: DECEMBER 19, 1991 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court No. 148,626 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiffs-Appellants: JOSEPH A. MAMONE NANCY A. ZOLLER Gurney, Miller & Mamone 75 Public Square, #525 Cleveland, Ohio 44113 For Defendants-Appellees: JAMES J. TUREK Reminger & Reminger Co., L.P.A. 113 St. Clair Building Cleveland, Ohio 44114 - 2 - KRUPANSKY, C.J.: Plaintiffs-appellants Dorothea and David Skaroupka filed this personal injury and related tort action against defendants- appellees Stam-Win, Incorporated ("Stam-Win") and Leaseway Transportation, Incorporated ("Leaseway") in the trial court on April 22, 1988. Plaintiffs alleged defendants negligently unloaded a shipment of liquor in the state liquor store managed by Dorothea Skaroupka ("Skaroupka"). In the unloading process Skaroupka alleges she aggravated a preexisting back injury. Plaintiffs sought damages for various medical expenses, pain and suffering, loss of employment and loss of consortium. Skaroupka testified the truck driver making such deliveries to the store would normally use a slide roller assembly to unload boxes of liquor from the delivery truck. The driver would install the device on the back of the truck after arriving at the store and slide the boxes down the track into the store where she or other liquor store employees would check the shipment and carry the boxes to their proper location. The slide roller assembly could not be used on the day of Skaroupka's alleged injury since the truck arrived fully loaded and there was no room at the back of the truck for the driver to install the device. Skaroupka provided the truck driver with a ladder after calling her supervisor to discuss the situation to permit them to unload enough boxes to install the slide roller assembly. The truck driver climbed the ladder and handed a - 3 - number of boxes of liquor to Skaroupka. Skaroupka claimed she aggravated her back injury after removing approximately twenty- five boxes in this manner. Stam-Win filed a motion for summary judgment supported by Skaroupka's deposition testimony on the grounds that appellants failed to demonstrate the existence of any duty toward Skaroupka. Appellants filed a brief in opposition after the trial court granted a thirty day extension. The trial court granted summary judgment in favor of Stam- Win and denied appellants' subsequent motion for reconsideration. Leaseway in turn filed its own motion for summary judgment incorporating Stam-Win's prior motion and Skaroupka's deposition testimony. The trial court thereafter granted summary judgment in favor of Leaseway. Appellants' first assignment of error follows: THE TRIAL COURT ERRED IN GRANTING DEFENDANT STAM- WIN, INC.'S MOTION FOR SUMMARY JUDGMENT BECAUSE STAM-WIN, INC. WAS NEGLIGENT AND BREACHED ITS DUTY TO PLAINTIFF. Appellants' first assignment of error is without merit. Civ. R. 56 provides that summary judgment may be granted if the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence in the pending case and written stipulations of fact, if any, timely filed in the action demonstrate the following: (1) no genuine issue as to any material fact remains to be litigated, (2) the moving party is entitled to judgment as a matter of law, and (3) it appears - 4 - from the evidence reasonable minds can come to but one conclusion viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made and the conclusion is adverse to that party. Van Fossen v. Babcock & Wilcox Co. (1988), 36 Ohio St. 3d 100, 117. Appellants equate duty with foreseeability and argue Stam- Win owed a duty of care to Skaroupka necessary to establish actionable negligence based on the alleged foreseeability of injury to Skaroupka. However, in this context the Ohio Supreme Court has recently stated as follows: Duty, as used in Ohio tort law, refers to the relationship between the plaintiff and the defendant from which arises an obligation on the part of the defendant to exercise due care toward the plaintiff. Baltimore & Ohio Southwestern Ry. Co. v. Cox (1902), 66 Ohio St. 276. The existence of duty depends largely on foreseeability. Menifee v. Ohio Welding Products, Inc. (1984), 15 Ohio St. 3d 75, 77. Commerce & Industry Ins. Co. v. Toledo (1989), 45 Ohio St. 3d 96 at 98. Summary judgment is warranted as a matter of law since appellants failed to produce any evidence of this essential element of their case in opposition Stam-Win's motion for summary judgment. Wing v. Anchor Media Ltd. of Texas (1991), 59 Ohio St. 3d 108, 111. Appellants failed to demonstrate the existence of any relationship between Skaroupka and Stam-Win giving rise to a duty of care toward Skaroupka and the derivative claim for loss - 5 - of consortium fails for the same reason. Commerce & Industry Ins. Co., supra. Skaroupka's deposition testimony indicates Stam-Win did not owe her a duty or have any reason to conceive she would suffer injury when unloading the truck since: (1) Stam-Win employed the truck driver to unload the truck, (2) Skaroupka never unloaded the truck in the past, and (3) Skaroupka volunteered and was not required by appellees or her employer to unload the boxes. As noted above, the Ohio Supreme Court rejected a similar argument in Cox, supra, that "foreseeability" of injury alone gives rise to a duty toward the plaintiff. The decedent in Cox had been riding on defendant's freight train with the assent of the conductor but contrary to company rules. The train carrying decedent subsequently collided with an oncoming train on the same tracks after one of defendant's employees opened and forgot to close the track switching device. Although accidents of this type are certainly "foreseeable" in general terms, the Court reinstated a directed verdict against the decedent notwithstanding the evidence of apparent negligence since the facts did not establish the existence of the necessary duty toward decedent. No such duty existed or subsequently arose based on agency principles from the fact decedent was riding with the assent of the conductor employed by defendant. Appellants in the case sub judice have likewise failed to demonstrate Skaroupka falls within the class of persons to whom - 6 - Stam-Win owed a duty. The foreseeability of any alleged risk of injury to the truck driver is certainly not relevant to appellants' claim. Id. Appellants sought to contradict Skaroupka's deposition testimony by submitting an affidavit from Skaroupka stating that a contract between the Department of Liquor Control and Stam-Win concerning deliveries to the store created a duty of care toward her. However, the affidavit failed to state the testimony was based on Skaroupka's personal knowledge or that Skaroupka was competent to testify to the matters stated therein as mandated by Civ. R. 56(E) and appellants did not attach a copy of the contract to their brief in opposition to summary judgment. Such materials are insufficient to demonstrate any genuine issue of material fact concerning the existence of a duty toward Skaroupka. Gilday v. S & R Playhouse Realty Co. (June 14, 1990), Cuyahoga App. No. 57022, unreported at 7. Accordingly, appellants' first assignment of error is without merit and overruled. Appellant's second assignment of error follows: THE PLAINTIFFS WERE PREJUDICED BY THE COURT'S RULING ON MAY 25, 1989 GRANTING DEFENDANT, STAM- WIN, INC.'S MOTION FOR SUMMARY JUDGMENT WITHOUT CONSIDERING FACTS AND LAW ARGUED IN PLAINTIFFS' RESPONSE FILED ON MAY 30, 1989. Appellant's second assignment of error is without merit. Appellants argue the trial court improperly granted partial summary judgment for Stam-Win without scheduling a hearing or - 7 - considering their reply brief filed without leave of court after the decision. As noted above, Stam-Win filed its motion for summary judgment February 28, 1989 and appellants filed their brief in opposition April 27, 1989. Both parties subsequently filed additional materials without having obtained leave from the trial court. Stam-Win filed a supplemental brief May 17, 1989 alleging the affidavit attached to appellants' brief in opposition to summary judgment was filed in bad faith contrary to Civ. R. 56(G). Appellants filed a reply brief May 30, 1989, but the trial court had granted Stam-Win's motion for summary judgment four days prior. Contrary to appellants' contention, Civ. R. 56(C) does not mandate the trial court conduct an oral hearing on a motion for summary judgment, particularly where no hearing was requested as in the case sub judice. Ambrose v. Society National Bank (Mar. 16, 1989), Cuyahoga App. No. 55137, unreported. Loc. R. 11(I) provides the trial court may rule on motions for summary judgment without such a hearing thirty days after service on the nonmovant as follows: Unless otherwise ordered by the Court, motions for summary judgment shall be heard on briefs and other materials authorized by Civil Rule 56(C) without oral arguments. The adverse party may file a brief in opposition with accompanying materials, within thirty (30) days after service of the motion. - 8 - Appellants had already obtained a thirty day extension for the trial court's decision by obtaining an extension to file their brief in opposition to Stam-Win's motion. However, the motion was ripe for disposition any time after appellants filed their brief in opposition and the trial court did not abuse its discretion in ruling on the motion without considering any additional materials. Loc. R. 11(D) does not permit the filing of additional briefs except as follows: Reply or additional briefs upon motions and submissions may be filed with leave of the court only upon a showing of good cause. Appellants have failed to demonstrate the trial court abused its discretion in refusing to consider their additional brief. It is axiomatic that a trial court only speaks through its journal. State, ex. rel. Indus. Comm'n v. Day (1940), 136 Ohio St. 477. Since there is no entry granting either party leave to file additional briefs and the trial court made no finding appellants' affidavit was made in bad faith there is no basis in the record to conclude the trial court considered the supplemental briefs of either party. Absent an affirmative demonstration of error, the Court must presume regularity and affirm the judgment of the trial court. Knapp v. Edwards Laboratories (1980), 61 Ohio St. 2d 197; Tyrell v. Investment Assoc. (1984), 16 Ohio App. 3d 47. - 9 - Accordingly, appellants' second assignment of error is without merit and overruled. Appellants' third assignment of error follows: THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT IN FAVOR OF LEASEWAY TRANSPORTATION, INC. WHEN THERE WAS NO SUPPORTING AFFIDAVIT OR EVIDENCE AS REQUIRED BY OHIO CIVIL RULE 56(D). Appellants' third assignment of error is without merit. Appellants argue the trial court improperly granted summary judgment in favor of Leaseway since Leaseway did not attach an affidavit to its motion stating that Stam-Win was an independent division of Leaseway when incorporating Stam-Win's motion for summary judgment. However, summary judgment in favor of Leaseway was warranted for precisely the same reasons the trial court granted summary judgment in favor of Stam-Win regardless of the relationship between appellees. Leaseway's motion demonstrated, based upon appellant's own deposition testimony, that appellants could not establish the existence of a duty toward Skaroupka necessary to sustain appellants' claims. Under the circumstances, no affidavit was necessary to warrant summary judgment in favor of Leaseway. Johnson v. Great American Ins. Co. (1988), 44 Ohio App. 3d 71; Hodgkinson v. Dunlop Tire & Rubber Corp. (1987), 38 Ohio App. 3d 101. Accordingly, appellants' third assignment of error is without merit and overruled. - 10 - It is ordered that appellee(s) recover of appellant(s) costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Court of Common Pleas to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. DYKE, J., CONCURS (See Concurring Opinion attached) BLACKMON, J., DISSENTS (See Dissenting Opinion attached) CHIEF JUSTICE BLANCHE KRUPANSKY N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 58821 DOROTHEA A. SKAROUPKA : : Plaintiff-appellant : : C O N C U R R I N G vs. : : O P I N I O N : STAM-WIN INC. ET AL. : : Defendant-appellee : : : DATE: DECEMBER 19, 1991 DYKE, J., CONCURRING: I concur on the grounds that appellant failed to present any evidence that in this case appellees had a duty to her which was breached. Duty, as used in Ohio tort law, refers to the relationship between the plaintiff and the defendant from which arises an obligation on the part of the defendant to exercise due care toward the plaintiff. Commerce & Industry Ins. Co. v. Toledo (1989), 45 Ohio St. 3d 96, 98. Clearly, appellees normal relationship with appellant did give rise to a duty to exercise due care during the delivery of the cases of liquor. Had appellant been injured due to the carelessness of appellees' driver during the usual delivery process (in which appellant was a spectator until the cases arrived inside the store) her action would have survived a motion for summary judgment. However, her decision to participate in - 2 - the actual unloading from the truck altered their relationship. Although she often removed cases from the end of the slide roller she was normally only a bystander to the initial removal of the cases from the truck. On this occasion for the first time she actively participated in the removal. Here, although appellee Stam-Win overloaded the truck, sent only one person to make the delivery and the driver did suggest that the appellant assist him (appellant's deposition at p. 47) she volunteered to do so. It's true that after appellant's supervisor heard the proposed plan for unloading the truck he merely told her that the job had to be done (p. 50) but appellant admitted that although she relied on the driver's advice the decision to participate was hers. Clearly appellees did not force her or require her to participate. COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 58821 : DOROTHEA A. SKAROUPKA : : Plaintiff-Appellant : : DISSENTING -vs- : : OPINION : STAM-WIN INC., ET AL. : : Defendant-Appellee : : DATE OF ANNOUNCEMENT OF DECISION: DECEMBER 19, 1991 BLACKMON, J., DISSENTING: I respectfully dissent from the decision of the majority in this matter. The majority cites Commerce & Industry, Ins. Co. v. Toledo (1989), 45 Ohio St. 3d 96 for the proposition that: Duty, as used in Ohio tort law, refers to the relationship between the plaintiff and the defendant from which arises an obligation on the part of the defendant to exercise due care toward the plaintiff. Commerce & Industry Ins. Co., immediately after the passage relied on above, states "the existence of duty largely depends on the foreseeability of injury," citing Menifee v. Ohio Welding Products, Inc. (1984), 15 Ohio St. 3d 75. However, Menifee at 77, cites Ford Motor Co. v. Tomlinson (C.A. 6, 1956), 229 F. 2d - 2 - 873 and states "the existence of a duty depends on the foresee- ability of the injury." Additionally, Commerce Industry Ins. Co. cites Gideon v. East Ohio Gas Co. (1934), 128 Ohio St. 335 for the appropriate legal test to determine foreseeability in whether a reasonably prudent person would have anticipated that an injury was likely to result from the performance or non-performance of an act. Menifee at 77. In Gideon, supra, a case on appeal from the Cuyahoga County Court of Common Pleas, the Ohio Supreme Court offered additional guidance on how to determine foreseeability at 339: It is not necessary, however, that injury to the plaintiff, himself, be foreseeable. It is enough that the act in question may, in human probability, produce harm to persons similarly situated. Nor is it neces- sary that the defendant, himself, actually anticipate or foresee the probability of injury to anyone. It is enough that the probability of injury to those in the plaintiff's general situation should have been perceived by a reasonably prudent and careful person. (Emphasis added.) On the question of how to determine whether a defendant should recognize the risks involved the Court in Menifee at 77 put forth the following test: In determining whether appellees should have recognized the risks involved, only those circumstances which they perceived, or should have perceived, at the time of their respective actions should be considered. Thus, the question of whether the appellee owes a duty to the appellant is determined by the issue of foreseeability of the injury. Furthermore, the opinion of Judge Krupansky states that - 3 - the case of Baltimore & Ohio Southwestern Ry. Co. v. Cox (1902), 66 Ohio St. 276 "rejects" the argument that foreseeability of injury alone gives rise to a duty toward the plaintiff. While Cox was decided on the failure of the administratrix to establish a relationship between the decedent and the defendant, there is no rejection of the argument that foreseeability of injury alone gives rise to a duty toward the plaintiff. The appellant testified that the usual and customary method of unloading the truck was not followed on the day in question. Ordinarily, upon the arrival of the driver, he would pull up the delivery door. A track was then set up to facilitate the cases being conveyed into the store. This track was normally set up by store employees and put away by them. The track had an extension that went out of the store and attached to the truck. The driver normally would have additional track inside the truck. The actual removal of the cases from the truck and placement on the conveyance mechanism was ordinarily done by the truck driver. Once the cases came down the track to the inside of the store, store employees, including the appellant sometimes would remove them from the track and place them in their proper location. The unloading on the inside did require some lifting and carrying. On the day of the appellant's alleged injury, this normal and customary practice could not be followed because the truck arrived overloaded. According to the appellant's testimony, the driver said that he did not know how the truck could be unloaded - 4 - in the normal manner. There was no room for the conveyor track to be placed on the end of the truck. The appellant's deposition reflects that the driver then suggested that if she had a ladder; he would position the ladder up against the truck. He would then climb up and attempt to pull one of the cases down to get it started. The driver would then hand the cases down to the appellant. It was the driver's intention to unload enough cases so that the conveyor track could be placed on the truck and the remaining cases could be unloaded in the usual manner. Upon hearing this suggested method, the appellant decided to contact her supervisor to tell him of the situation. She informed him of the driver's intention to remove enough cases off of the flush face of the truck to finish unloading in the normal manner. In addition, she informed her supervisor that it was the driver's suggestion to use this procedure, however, she did not think it was a very good idea. The appellant testified that the ladder against the truck, and the way they were going to unload it, did not appear safe for the driver or herself. However, the driver assured her along with his dispatcher that he could do it. The appellant testified that she relied on those assurances because "after all they were in the business, you know. [t]hat's what they do for a living ***" - 5 - The appellant also testified that she felt that she had to help unload the truck if necessary. She also was clear that the ultimate decision was hers to participate in this manner of unloading the truck. Under the legal tests of foreseeability, there is a genuine issue of material fact as to whether the appellee owed the appellant a duty. It is indeed a question of material fact as to whether a reasonably prudent delivery truck driver would have anticipated that an injury was likely to result from the performance of unloading the truck in the manner that was tried. Menifee suggests that a determination of whether the appellees should have recognized the risks involved considers only those circumstances which the appellees perceived or should have perceived at the time of their actions. It was certainly perceived that the method of unloading the truck with the ladder was not the ordinary and usual way it was unloaded. It should have been perceived that it was dangerous or risky to climb a ladder, remove a case of liquor from the top of a truck, climb down the ladder a few rungs with the case, and then hand it directly overhead to a woman standing immediately below. It should have been perceived that in human probability this method of unloading the truck may produce harm, not only to the appellant but the driver as well. Ohio Civil Rule 56(C) states: A summary judgment shall not be rendered unless it appears from such evidence or stipulation and only - 6 - therefrom, that reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, such party being entitled to have the evidence or stipulation construed most strongly in his favor. A summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages. (Emphasis added.) Based upon the dictates of Civil Rule 56(C), the factual circumstances of this case have to be construed in a light most favorable to the plaintiff-appellant. Additionally, the trial court must avoid at all cost the probability of determining substantive defenses such as assumption of the risk or comparative fault under the disguise of a no-duty summary judgment ruling, when the issue is best resolved by the vehicle known as directed verdict. In so doing, it is my conclusion that summary judgment should not have been granted on the existence of a duty owed to the plaintiff-appellant. Reasonable minds can reach different conclusions as to whether a reasonably prudent delivery truck driver would have anticipated that an injury was likely to result from the abnormal manner in which the truck was unloaded. This conclusion has to especially be reached when construing the evidence in a light most favorable to the appellant. I would reverse the decision of the trial court and remand the case for further proceedings. .