COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60179 JOANNA BROWN, ET AL., : : Plaintiffs-Appellants : : JOURNAL ENTRY vs. : and : OPINION SOLON RESTAURANT REPAIR, ET AL., : : Defendants-Appellees : : : DATE OF ANNOUNCEMENT OF DECISION : APRIL 16, 1992 CHARACTER OF PROCEEDING : Civil appeal from : Common Pleas Court : Case No. 146,002 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiffs-appellants: Donald E. Worthing 200 Public Square Cleveland, Ohio 44114-2301 For defendant-appellee, Kenneth J. Knabe Vollrath Refrigeration, Inc.: 400 Park Plaza Building Cleveland, Ohio 44114 For defendant-appellee, Irwin J. Dinn Stainless, Inc.: 5885 Landerwood Avenue Mayfield Heights, Ohio 44124 -2- NAHRA, J.: Joanna and Todd Brown appeal from the trial court's decision granting summary judgment in favor of appellees Vollrath Refrigeration, Inc. and Stainless, Incorporated. For the reasons set forth below, we affirm. On July 24, 1986, Joanna Brown slipped and fell on ice on the floor of a walk-in freezer at the Burger King restaurant at Parmatown Mall. Brown was injured as a result of the fall. Brown and her husband Todd brought a complaint against Solon Restaurant Repair, Union Turnkey Installation, Vollrath, and Stainless. Only Vollrath and Stainless are parties to this appeal. The complaint asserted that the freezer was negligently manufactured, installed or maintained, that it was improperly designed and unreasonably dangerous, and not fit for ordinary purposes. Vollrath and Stainless filed motions for summary judgment. Both motions were granted. Plaintiffs filed a motion for reconsideration or relief from judgment which was denied. Plaintiffs timely filed this appeal. I. Appellants' first two assignments of error assert that the trial court erred in granting summary judgment to Vollrath and -3- Stainless due to the existence of genuine issues of material 1 fact. In Wing v. Anchor Media, Ltd. of Texas (1990), 59 Ohio St. 3d 108, paragraph three of the syllabus, the court held that a party must come forward with evidence of each element of its claims to withstand a well-supported summary judgment motion. In this case, appellants raised a number of claims, including negligent installation, breach of implied warranty of fitness, defective design, strict liability and failure to warn. However, appellants failed to come forward with evidence of the elements of their claims except for their negligent installation claim in response to the summary judgment motions. Appellants failed to present evidence that the freezer was "in a defective condition unreasonably dangerous to the user or consumer" as required for implied warranty and strict liability claims. Temple v. Wean United, Inc. (1977), 50 Ohio St. 2d 317, paragraph one of the syllabus. Appellants' evidence indicated 1 Appellants' first two assignments of error read as follows: THE TRIAL COURT ERRED IN GRANTING DEFENDANT/APPELLEE STAINLESS, INC.'S MOTION FOR SUMMARY JUDGMENT WHEN SUBSTANTIAL QUESTIONS OF MATERIAL FACT EXISTED AS TO THE LIABILITY OF STAINLESS UNDER THEORIES OF NEGLIGENCE AND BREACH OF WARRANTY/STRICT LIABILITY IN TORT. THE TRIAL COURT ERRED IN GRANTING DEFENDANT/APPELLEE VOLLRATH REFRIGERATION, INC.'S MOTION FOR SUMMARY JUDGMENT WHEN SUBSTANTIAL QUESTIONS OF MATERIAL FACT EXISTED AS TO THE LIABILITY OF VOLLRATH UNDER THEORIES OF NEGLIGENCE AND BREACH OF WARRANTY/STRICT LIABILITY IN TORT. -4- that lack of sealant in the electrical conduit proximately caused the accident, but did not establish that the freezer was unreasonably dangerous or in a defective condition. Appellants also failed to set forth evidence tending to show that the freezer was more dangerous than an ordinary consumer would expect, or that the risks of the design outweighed its benefits, as required for a defective design case. See Knitz v. Minster Machine Co. (1982), 69 Ohio St. 2d 460, syllabus, certiorari denied, 459 U.S. 857. Again, the only evidence of liability concerned the electrical installation of the freezer, not its design. Appellants' claims for failure to warn were also properly dismissed, because they were not supported by evidence of latent defect or that the freezer was a known dangerous product. See, e.g., Crislip v. TCH Liquidating Co. (1990), 52 Ohio St. 3d 251, paragraphs one and two of the syllabus; Taylor v. Yale & Towne Mfg. Co. (1987), 36 Ohio App. 3d 62, paragraphs two and four of the syllabus. Appellants did adduce evidence of their negligent installation claim in response to Vollrath's and Stainless' summary judgment motions. However, appellants did not adduce competent evidence to contradict Vollrath's and Stainless' evidence indicating that they had nothing to do with the installation. Appellants submitted affidavits of the general contractor asserting that Vollrath or Stainless was "responsible" for the installation. These witnesses did not state that either -5- Vollrath or Stainless actually did the installation. They did not state which party was actually responsible, and did not support their affidavits with any evidence indicating the basis of their personal knowledge of these responsibilities. Therefore, these affidavits are insufficient to create a factual issue as to whether Vollrath or Stainless did the installation. Accordingly, Vollrath's and Stainless' summary judgment motions were properly granted as to each and every theory of liability. Appellants' first two assignments of error are overruled. II. Appellant's third assignment of error reads as follows: THE TRIAL COURT ERRED IN DENYING PLAINTIFFS/APPELLANTS' MOTION FOR RELIEF FROM JUDGMENT/RECONSIDERATION REQUESTING RELIEF FROM THE JUDGMENT GRANTING DEFENDANT/APPELLEE VOLLRATH'S MOTION FOR SUMMARY JUDGMENT BASED UPON NEWLY DISCOVERED EVIDENCE AND THE EXISTENCE OF A SUBSTANTIAL QUESTION OF MATERIAL FACT. Civ. R. 60(B)(2) provides for relief from judgment on the basis of newly discovered evidence only as to evidence which by due diligence could not have been discovered within 14 days after the judgment at issue. In East Ohio Gas Co. v. Walker (1978), 59 Ohio App. 2d 216, syllabus, the court held that unsworn allegations are not enough to prevail on a Civ. R. 60(B) motion. In Wiley v. National Garages, Inc. (1984), 22 Ohio App. 3d 57, 64, the court denied relief from judgment where the movant failed to demonstrate why the evidence could not have been discovered by due diligence, and where the source of the evidence was obvious. -6- In this case, the allegedly "newly discovered evidence" consisted of an electrical permit and affidavits from the general contractor of the Burger King renovation. As in Wiley, these sources of evidence were obvious. Also, appellants failed to put forth any evidence explaining why this evidence could not have been obtained with due diligence. Appellants' third assignment of error is overruled. III. Appellant's fourth assignment of error reads as follows: THE TRIAL COURT ERRED IN GRANTING THE MOTIONS FOR SUMMARY JUDGMENT OF APPELLEES VOLLRATH AND STAINLESS AND IN DENYING APPELLANTS' MOTION FOR RELIEF FROM JUDGMENT/RECONSIDERATION WHEN THERE EXISTED AN UNSETTLED QUESTION OF LAW PERTAINING TO A MATERIAL ISSUE OF FACT. We have already determined that the trial court properly granted summary judgment in favor of both Vollrath and Stainless on the failure to warn claims because appellants failed to adduce evidence of the elements of those claims in response to the summary judgment motions of Vollrath and Stainless. Wing v. Anchor Media, Ltd. of Texas, see supra. Accordingly, appellants' fourth assignment of error is without merit. Affirmed. -7- It is ordered that appellees recover of appellants 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 Common Pleas Court 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. DAVID T. MATIA, C.J., and FRANCIS E. SWEENEY, J., CONCUR. JOSEPH J. NAHRA JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement 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. .