COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59055 MARILYN ANTONUCCI : : Plaintiff-appellant : : JOURNAL ENTRY -vs- : AND : OPINION CENTRAL NATIONAL BANK, ET AL. : : Defendant-appellee : : DATE OF ANNOUNCEMENT : SEPTEMBER 26, 1991 OF DECISION : CHARACTER OF PROCEEDING : Civil appeal from Court of Common Pleas : Case No. 148,352 JUDGMENT : AFFIRMED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellant: For defendant-appellee: Howard E. Coburn, Esq. Philip J. Korey, Esq. Carol Shockley, Esq. 410 Leader Building 900 Park Plaza Cleveland, OH 44114 1111 Chester Avenue Cleveland, OH 44114 - 2 - PATTON, J., In a timely appeal, Marilyn Antonucci ("plaintiff") seeks review of a summary judgment in favor of defendants Society National Bank ("Bank"), the successor by merger to Central National Bank, on a claim for tortious infliction of emotional distress. Plaintiff sued the Bank for destruction of certain documents she stored in a safe deposit box at the Bank. The relevant facts are as follows: Plaintiff opened a safe deposit box at the Bank in 1976, at which time she signed a safe deposit box lease agreement whereby plaintiff agreed to abide by the terms of said agreement. Plaintiff placed in the box her original birth certificate, adoption papers, as she was an adopted child, her last will and testament and "other personal sensitive documents." (see Complaint, para. 3). Plaintiff made annual rent payments for the safe deposit box up through 1979 and discontinued further rent payments. Plaintiff moved in the early part of 1979 and did not leave a forwarding address with the post office nor did she notify the Bank of her new address. On or about April 25, 1983, the Bank sent plaintiff a letter known as a 15-day "break open letter" whereby the Bank informed plaintiff that her rental payments were delinquent and that if she did not pay the amount due within 15 days from the date of the notice, the Bank was going to break open the safe deposit box and remove the documents in accordance with the rental - 3 - contract. This letter was sent to the last address plaintiff had provided the Bank. The letter was returned to the Bank as undeliverable. Hence, plaintiff never received the Bank's notice. The contract provides in relevant part: 7. If the bank shall have terminated the lease or the renter shall have failed to pay any rental within three months of the time it becomes due, and if the renter in either case shall have failed to surrender possession of the box and both keys therefor promptly, the bank shall have the right fifteen (15) days after giving the renter notice of its intended action, forcibly to open the box in the presence of two of its officers or representatives and one other witness and to remove the contents. * * * And if such contents shall remain unclaimed for two months thereafter, the bank shall have the right to destroy such contents without liability therefor. The contract further provides: * * * The renter assumes all risks arising from the deposit of securities or other property in a box except that the bank shall not be exempt from liability for its own willful injury to such securities or other property, but this liability is assumed upon the condition that the fact that the securities or other property may be missing shall not be taken as evidence of any negligence on the part of the bank. The renter expressly waives every presumption of law that loss shall have occurred through negligence of the bank and agrees that the bank shall not be liable for any loss sustained by the renter unless such loss shall have been caused by some specific clearly proven, willful act of the bank. - 4 - On January 26, 1984, approximately nine months after the Bank attempted to send the "break open letter" to plaintiff, the Bank broke into plaintiff's safe deposit box and prepared an inventory of its contents. On April 23, 1985, the contents of plaintiff's safe deposit box were destroyed, nearly two years after the Bank's "break open letter" and approximately six years after plaintiff's last rent payment. On November 10, 1986, plaintiff contacted the Bank and asked to view the contents of the safe deposit box. Shortly thereafter, plaintiff was informed that the contents were destroyed over one year prior to her inquiry. Plaintiff was apparently very distraught over the destruction of these documents because she was adopted and her adoption papers and birth certificate were "dear" to her. (Plaintiff's affidavit, para. 34). It is from the adverse judgment below that plaintiff timely appeals, assigning as error the following: THE TRIAL COURT ERRED IN GRANTING DEFENDANTS' MOTIONS [sic] FOR SUMMARY JUDGMENT IN THAT THERE WERE GENUINE ISSUES OF MATERIAL FACT AS TO WHETHER THE DEFENDANTS NEGLIGENTLY IN- FLICTED SERIOUS EMOTIONAL DISTRESS UPON THE PLAINTIFF. I. Plaintiff posits that the trial court erred in granting the Bank's motion for summary judgment. Specifically, she contends there exist genuine issues of material fact for trial regarding: - 5 - (1) whether the Bank's conduct in not attempting to locate plaintiff before destroying her documents constituted reasonable care; (2) whether her claimed emotional injury was foreseeable, given the nature of the documents which were destroyed, and (3) whether the documents were indeed "valuable." Summary judgment may be granted only when no genuine issue of material fact remains to be litigated, and when, construing the evidence in the light most favorable to the nonmovant, the moving party is entitled to judgment as a matter of law. Harless v. Wills Day Warehousing Co. (1978), 54 Ohio St. 2d 64, 66; Civ. R. 56. See, also, Bostic v. Connor (1987), 37 Ohio St. 3d 144. When a summary judgment motion is made and supported by document- ary evidence, the adverse party may not merely rest upon his pleadings, but must set forth specific facts by affidavit or other Rule 56 evidentiary matters showing that there is a genuine issue for trial. Civ. R. 56(E). Summary judgment disposition is appropriate when reasonable minds can come to but one conclusion after reviewing the evidence and that conclusion is adverse to the nonmoving party. Civ. R. 56(C). Importantly, "*** the nonmoving party has a burden of rebuttal to supply evidentiary materials supporting his position, when the moving party presents evidentiary materials which deny that claim. [citation omitted]" Whiteleather v. Yosowitz (1983), 10 Ohio App. 3d 272, 275. "In [this] situation, - 6 - the nonmoving party cannot rely on bare pleadings unsupported by evidentiary material. Civ. R. 56(E); [citation omitted]." Id. Plaintiff's complaint sounded in negligent infliction of emotional distress. "A cause of action may be stated for the negligent in- fliction of emotional distress without a contemporaneous physical injury. [citation omitted]." Schultz v. Barberton Glass Co. (1983), 4 Ohio St. 3d 131, syllabus. In the absence of con- temporaneous physical injury, compensable distress must be severe and debilitating. Binns v. Fredendall (1987), 32 Ohio St. 3d 244. In Paugh v. Hanks (1983), 6 Ohio St. 3d 72, paragraph 3(a) of the syllabus, the court described the requisite severity: "Serious emotional distress describes emotional injury which is both severe and debilitating. Thus, serious emotional distress may be found where a reasonable person, normally constituted, would be unable to cope adequately with the mental distress engendered by the circumstances of the case." The Paugh court listed, at 78, examples of compensable distress: "*** neurosis, psychosis, chronic depression, or phobia." Although the list is nonexhaustive, it illustrates the degree of severity contemplated by the court. Plaintiff has failed to establish a genuine issue of material fact that her injuries were in fact the kind of injuries that can be characterized as severe and debilitating. Attached to plaintiff's motion for summary judgment were the following documents: (1) an inventory list of the contents in - 7 - plaintiff's safe deposit box as recorded by the Bank; (2) the Bank's delinquent rental record; (3) the Bank's regulations governing the rental of safe deposit boxes; (4) a sworn affidavit of plaintiff's, and (5) a copy of a request for admissions to the Bank and the Bank's objection on relevancy grounds to said request. The only evidence remotely relevant to a severe and debilitating injury is contained in plaintiff's affidavit wherein she stated she was "shaking" upon receiving word her safe deposit box had been rented to someone else (affidavit, at para. 26); she was "hysterical and shook with grief" when she learned the contents had been destroyed (affidavit, at para. 33), and; she "suffered severe emotional distress and continue[s] to suffer ***" (affidavit, at para. 34). This clearly is not the degree of severity or debilitation contemplated as compensable under Ohio law. As there are no genuine issues of material fact, the trial court did not err in granting the Bank's motion for summary judgment. Accordingly, plaintiff's assignment of error is overruled. Judgment affirmed. - 8 - It is ordered that appellees recover of appellant their 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. NAHRA, P.J. JAMES D. SWEENEY, J., CONCUR JUDGE JOHN T. PATTON 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 journaliza- tion, at which time it will become the judgment and order of the court and time period for review will begin to run. .