COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 61269 BEVERLY FILMORE, ET AL. : : Plaintiff-Appellants : JOURNAL ENTRY : v. : AND : CONVENTION & VISITOR'S BUREAU : OPINION : Defendant-Appellees : DATE OF ANNOUNCEMENT OF DECISION: OCTOBER 29, 1992 CHARACTER OF PROCEEDING: CIVIL APPEAL FROM THE COMMON PLEAS COURT CASE NO. CP-152102 JUDGMENT: AFFIRMED, IN PART; REVERSED, IN PART; AND REMANDED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellants: JEROME SILVER 3421 PROSPECT AVENUE CLEVELAND, OHIO 44115 For Defendant-Appellee, Bond Court Hotel: BRUCE S. GOLDSTEIN RICHARD A. HOENIGMAN & ASSOCIATES 3100 ONE CLEVELAND CENTER 1375 EAST NINTH STREET CLEVELAND, OHIO 44114 For Defendant-Appellee, Convention & Visitor's Bureau of Cleveland: JAMES L. GLOWACKI 510 LEADER BUILDING CLEVELAND, OHIO 44114 (CONTINUED ON NEXT PAGE) - 1 - For Defendant-Appellee, ARA Leisure Services, Inc.: PHILIP J. WEAVER, JR. TERRY J. DUNN CRONQUIST, SMITH, MARSHALL & WEAVER 500 NATIONAL CITY-E. 6TH BLDG. CLEVELAND, OHIO 44114 For Defendant-Appellee, City of Cleveland: JULIUS R. GERLACK DAN A. MORELL, JR. MANSOUR, GAVIN, GERLACK & MANOS CO., L.P.A. 2150 ILLUMINATING BUILDING 55 PUBLIC SQUARE CLEVELAND, OHIO 44113 -2- SPELLACY, J.: Plaintiffs-appellants Beverly Filmore, Doris Causey, and Kate Neason appeal the trial court's grant of summary judgment in favor of defendants-appellees Convention and Visitor's Bureau of Cleveland ("Bureau"), the Bond Court Hotel ("Bond Court"), ARA Leisure Service, Inc. ("ARA"), and the City of Cleveland ("Cleveland"). Appellants raise the following assignments of error: I. THE TRIAL COURT ABUSED ITS DISCRETION IN DISMISSING THIS CASE WHEN ALL MATTERS HAD NOT BEEN RESOLVED. II. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT WHEN THE MOVANTS DID NOT SUSTAIN THEIR BURDEN OF PROOF. III. THE PLAINTIFF[S] SUCCESSFULLY RAISED AN ISSUE OF MATERIAL FACT MERITING A TRIAL ON ALL ISSUES. -3- IV. THE TRIAL COURT DID NOT FOLLOW THE MANDATE OF THIS HONORABLE COURT ON REMAND. I. While taking part in a convention, appellants attended a banquet at the Cleveland Convention Center where they, along with almost one hundred other people, became ill. Later, appellants initiated this action, alleging they became ill as the result of food poisoning and air contaminants, against Bureau, which had a role in organizing the convention, Bond Court, where appellants stayed, ARA, which catered the banquet, and Cleveland, which owns and operates the Cleveland Convention Center. In addition to alleging the appellees were negligent, appellants alleged Bureau and ARA breached representations of safety. Appellees filed motions for summary judgment and provided a report from the Ohio Department of Health, which concluded that: 1. The cause of this outbreak [of illness] is not firmly established by the investigation. 2. The outbreak had a rapid onset during the banquet ***. 3. A viral or bacterial infection as a cause for the outbreak is unlikely based on laboratory and epidemiologic data. 4. High levels of carboxyhemoglobin were detected in many of the ill banquet-goers. 5. There were conditions present in the convention center which could have raised the ambient CO concentration above normal. The report went on to recommend that: 1. Vehicles powered by internal combustion engines should not be allowed inside of the -4- arena of the convention center for more than 10 minutes at a time during, or within l hour prior to, a scheduled event at the convention center. The use of electric-powered vehicles is to be encouraged. 2. A regular maintenance schedule should be established for vehicles owned by the Convention Center. Such a schedule should include CO monitoring of exhaust. 3. For the next year, a CO monitoring device should be used before, during and after any scheduled event at the Center which involves more than 400 participants. Records on such monitors should be available to the Cleveland City Health Department and to the general public. In addition, Bond Court provided an affidavit demonstrating it had no connection with the banquet and Bureau provided an affidavit demonstrating it neither provided convention space or food services nor selected the facilities for the convention. Appellants responded by providing, among other things, medical reports for Filmore and Causey. Filmore's report indicates she was diagnosed with "presumed [food] poisoning." Causey's report indicated she suffered a "[p]robable hysterical reaction to other people being sick with food poisoning, although [she] may well have been affected by food poisoning." The trial court granted appellees' motions for summary judgment. II. In their first assignment of error, appellants contend the trial court failed to comply with Loc. R. 11(I) of the Court of Common Pleas of Cuyahoga County, General Division, when it -5- granted Cleveland's motion for summary judgment filed on February 9, 1989. At the time this case was before the trial court, Loc. R. 11(I) provided: 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 thirty (30) days after service of the Motion upon the opposing party. The adverse party prior to the day of hearing may serve and file opposing affidavits. In the event the adverse party also files a Motion for Summary Judgment, the hearing date shall be extended to thirty (30) days from the service upon the opposing party of the latter motion. (Emphasis added). Although we agree the trial court ruled on Cleveland's February 9, 1989, motion for summary judgment prematurely, we find no harm. After Cleveland filed its motion for summary judgment on February 9, 1989, appellants filed a motion for summary judgment on March 10, 1989. Then the trial court, without waiting the required thirty days, granted Cleveland's February 9, 1989, motion for summary judgment. On March 10, 1989, however, Cleveland filed an amended motion for summary judgment. The trial court subsequently granted this motion in compliance with the time requirements found in Loc. R. 11(I). Accordingly, appellants' first assignment of error is not well taken. III. We address appellants' second and third assignments of error together. -6- In their second assignment of error, appellants contend appellees did not sustain their burden of proof. In their third assignment of error, appellants contend they successfully raised an issue of material fact. A. First, we address whether the trial court properly granted summary judgment in favor of Bureau and Bond Court. A reviewing court must follow the standard set forth in Civ. R. 56(C) when it reviews a summary judgment. Albain v. Flower Hospital (1990), 50 Ohio St.3d 251, 254. As Albain noted: Civ. R. 56(C) specifically provides 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. Id. B. First, we find that the trial court properly granted summary judgment in favor of Bureau and Bond Court. To establish negligence a party must show the existence of a duty, a breach of that duty, and an injury proximately caused by the breach of the duty. Mussivand v. David (1989), 45 Ohio St. 3d 314, 318. Reasonable minds, even viewing the evidence most strongly in favor of appellants, could only conclude that Bureau -7- and Bond Court were not connected with the banquet. Neither Bureau nor Bond Court, therefore, owed a duty to appellants. Further, there is no evidence that Bureau made representations of safety concerning the banquet. C. Second, we find that the trial court properly granted summary judgment in favor of ARA. Appellants alleged that ARA provided tainted food. Reasonable minds, however, even construing the evidence most strongly in favor of appellants, could only conclude that appellants did not contract food poisoning at the banquet. Thus, appellants did not sustain an injury proximately caused by ARA. In addition, ARA did not breach any representations of safety it may have made. Appellants argue the trial court should not have considered the Ohio Department of Health's report because reports are not considered evidentiary material under Civ. R. 56. Evidentiary material not specifically authorized by Civ. R. 56(C) , however, may be introduced if it is incorporated by reference into a properly framed affidavit. Martin v. Central Ohio Transit Auth. (1990), 70 Ohio App.3d 83, 89. Appellees satisfied this requirement by providing an affidavit of the chief of the Ohio Bureau of Preventive Medicine incorporating the report. D. Finally, we find the trial court erred when it granted summary judgment in favor of Cleveland. -8- Reasonable minds, construing the evidentiary material most strongly in favor of appellants, specifically the Ohio Department of Health's report, could conclude that appellants suffered carbon monoxide poisoning. Summary judgment, therefore, is inappropriate. Accordingly, appellants' second and third assignments of error are well taken to the extent that the trial court erred when it granted summary judgment in favor of Cleveland. IV. In their fourth assignment of error, appellants contend the trial court failed to comply with this court's order on remand. This is the second time this case has been appealed to this court. The first time it was appealed, we dismissed under Civ. R. 54(B). Appellants argue this case is still not in compliance with Civ. R. 54(B) because the trial court failed to find "no just cause for delay." Such a finding, however, is required only when the trial court has not rendered final judgment for all the parties, or all the claims. The trial court has now rendered final judgment for all the parties and all the claims. Accordingly, appellants' fourth assignment of error is not well taken. Judgment affirmed, in part; reversed, in part; and remanded. -9- 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 ANN MCMANAMON, J., CONCUR. LEO M. SPELLACY 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. .