COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60241 MARGARET MORABITO, et al : : Plaintiff-appellants : : JOURNAL ENTRY vs. : and : OPINION SONOCO PRODUCTS CO., et al : : Defendant-appellees : : : DATE OF ANNOUNCEMENT : MARCH 19, 1992 OF DECISION : _______________________ CHARACTER OF PROCEEDING : Civil appeal from : Court of Common Pleas : Case No. 163,190 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellants: JAMES B. KOPLOW Attorney at Law 1020 Leader Building Cleveland, Ohio 44114 For defendant-appellees: JAMES M. JOHNSON Attorney at Law 330 Hanna Building Cleveland, Ohio 44115 - 2 - PATTON, J: Plaintiff-appellants Margaret ("plaintiff") and Tony Morabito (collectively "appellants") appeal from the trial court's grant of summary judgment in favor of defendant-appellee First National Supermarkets, Inc. ("the supermarket"), the owner 1 of the Finast chain of supermarkets. Appellants sued the supermarket for injuries sustained to her nose and elbow as the result of negligently packing groceries so as to cause the plastic bag to tear as the plaintiff was descending the stairs at her home. The plaintiff allegedly tripped and fell, but was unable to conclusively establish, by way of deposition testimony, exactly what caused her to trip. The plaintiff could not recall the cause of her fall. The appellants procured an expert in polymer science, Dr. Edward Collins ("Dr. Collins"). However, Dr. Collins averred that he did not have sufficient information to form an opinion, based upon a reasonable degree of scientific certainty, that the plastic grocery sacks were defective. Dr. Collins requested more information from Sonoco by way of letter to counsel for plaintiffs dated March 13, 1990. Dr. Collins stated he needed to conduct tests for a comparative study. The complaint was filed January 12, 1989. The supermarket answered on February 21, 1989. On November 14, 1989, the trial 1 The appellants also sued Sonoco Products Company, as the manufacturer of certain plastic bags utilized by the supermarket. The claims against Sonoco were settled and dismissed. - 3 - court ordered the plaintiffs' expert report due on December 24, 1989. The order also stated, as did a subsequent order on January 5, 1990, that no further extensions would be granted. On January 9, 1990, a discovery order was filed which ordered Sonoco to supply the requested information and also ordered a conference call with the plaintiffs' expert, experts from Sonoco and the parties to the lawsuit. The plaintiffs' motion to compel discovery regarding Sonoco was simultaneously granted. On February 21, 1990, Sonoco produced documents to the plaintiffs' counsel. Thereafter, on February 23, 1990, the supermarket filed its motion for summary judgment. The plaintiffs filed a brief in opposition on March 8, 1990. On March 23, 1990, supplemental documents were filed by the plaintiffs in support of their brief in opposition. Also, on March 23, 1990, the plaintiffs filed a motion to compel Sonoco to produce documents requested by Dr. Collins and for sanctions. On April 10, 1990, the trial court granted the supermarket's motion for summary judgment. On June 29, 1990, the action against Sonoco was settled and dismissed with prejudice in favor of the plaintiffs. Their timely appeal asserts the following errors for our review: 1. THE TRIAL COURT ERRED IN GRANTING APPELLEE'S MOTION FOR SUMMARY JUDGMENT IF THE BASIS FOR SUCH WAS THAT THE EVIDENCE PRODUCED HAD - 4 - FAILED TO ESTABLISH A TRIABLE ISSUE AS TO THE PROXIMATE CAUSE OF APPELLANT'S INJURIES. 2. THE TRIAL COURT ERRED IN GRANTING APPELLEE'S MOTION FOR SUMMARY JUDGMENT IF THE BASIS FOR SUCH WAS THAT THE EVIDENCE PRODUCED BY APPEL- LANT'S OWN TESTIMONY HAD FAILED TO ESTABLISH A TRIABLE ISSUE AS TO THE NEGLIGENCE OF APPELLEE. 3. THE TRIAL COURT ERRED IN GRANTING APPELLEE'S MOTION FOR SUMMARY JUDGMENT IF THE BASIS FOR SUCH WAS THAT APPELLANTS HAD NOT PRODUCED EVIDENCE OF NEGLIGENCE BY APPELLEE (NOTWITH- STANDING THIS COURT'S DECISION AS TO THE EVIDENCE ALLUDED TO IN ASSIGNMENT OF ERROR #2) IN THAT APPELLANTS WERE THWARTED FROM COMPLETING DISCOVERY AGAINST A CO-DEFENDANT WHO WAS IN POSSESSION OF DATA AND DOCUMENTS NECESSARY FOR APPELLANT'S EXPERT WITNESS TO FORMULATE AN OPINION ON THE NEGLIGENCE OF THE PARTIES. Because the assignments of error are interrelated and not briefed separately, they will be discussed together. Essentially, the plaintiffs argue the trial court erred in granting the supermarket's motion for summary judgment. A. First, the plaintiffs contend they did indeed present evi- dence of negligence even without Dr. Collins' expert opinion. In particular, they aver that the supermarket breached its "obvious" duty not to give customers a "damaged or torn bag, ***." (See plaintiff's brief at p. 13.) However, not one iota of evidence was brought forward regarding this apparent "obvious" breach. - 5 - This court, in reviewing the granting of summary judgment, must follow the standard set forth in Civ. R. 56(C), which pro- vides that before summary judgment may be granted it must be determined that: (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 from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party. Temple v. Wean United, Inc. (1977), 50 Ohio St. 2d 317, 327, 4 O.O. 3d 466, 472, 364 N.E. 2d 267, 274. Stegawski v. Cleveland Anesthesia Group, Inc. (1987), 37 Ohio App. 3d 78, 82. "A motion for summary judgment forces the nonmoving party to produce evidence on any issue for which that party bears the burden of production at trial. (Celotex v. Catrett [1986], 477 U.S. 317, approved and followed.)" Wing v. Anchor Media Ltd. of Texas (1991), 59 Ohio St. 3d 108, paragraph three of the syllabus. Although the moving party must disclose the basis for the summary judgment and support the motion with evidence, the nonmoving party carries a reciprocal burden of specificity. Mitseff v. Wheeler (1988), 38 Ohio St. 3d 112, 115. Civ. R. 56(E) provides in pertinent part: *** When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavit or as otherwise provided in this rule, must set forth specific facts showing that there - 6 - is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him. Hence, requiring that the moving party be specific in his reasons for requesting summary judgment provides the nonmoving party with the information necessary to formulate an appropriate response as required by Civ. R. 56(E). In this case, the supermarket averred in its motion for summary judgment that plaintiff's own deposition testimony estab- lished no negligence on the supermarket's part. Specifically, the supermarket highlighted portions of the plaintiff's deposition testimony that illustrated she could not recall how the grocery bags were packed; whether they were packed in a negligent manner; what specific items were contained in the 2 bags; how fully packed the bags were; if the bags were heavy; or what exactly caused her to fall. In response, appellants argue that there was "some evidence presented as to the proximate cause of plaintiff's falling down the stairs, ***." (See the appellants' brief in opposition to the supermarket's motion for summary judgment at p. 13.) Attached to their brief in opposition and addendum thereto were printed instructions from Sonoco on the proper manner in which to pack groceries, general information regarding Sonoco, and two affidavits. Both of the appellants' affidavits did not even 2 The plaintiff later alleged by way of affidavit that she recalled, and in fact enumerated, some of the items contained in the grocery bags which she was carrying down her stairs. - 7 - allege that the supermarket was negligent in any manner, nor did the affidavits set forth any evidence which could be reasonably construed as establishing any negligence. Hence, this argument must fail. B. The appellants also contend the trial court erred in granting the supermarket's motion for summary judgment before allowing their expert to obtain all the necessary documentation sufficient to form an opinion. This argument must likewise fail. The appellants' contentions essentially challenge the trial court's rulings as they relate to discovery of Sonoco's documents. Dr. Collins had been retained by the appellants to research, examine and render an opinion regarding a products liability cause of action against Sonoco. The appellants settled their claims and dismissed the action against Sonoco. They are not appealing that ruling and any arguments relating to their claims against Sonoco are not properly before this court. Accordingly, the appellants' assignments of error are not well taken and are hereby overruled. Judgment affirmed. - 8 - 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 Cuyahoga County 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, P.J. NAHRA, 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 journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .