COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67043 NORMAN AND GAIL KAMEN, ET AL. : : Plaintiffs-appellants : : JOURNAL ENTRY -vs- : AND : OPINION STEPHEN AND BETTY HORVATH, : ET AL. : : Defendants-appellees : : DATE OF ANNOUNCEMENT OF DECISION: MARCH 9, 1995 CHARACTER OF PROCEEDING: Civil appeal from Court of Common Pleas Case No. 244383 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiffs-Appellants: For Defendants-Appellees: GREGORY L. HAIL, ESQ. MICHAEL L. CLARK, ESQ. 846 N. Cleveland-Massillon Rd. 333 Leader Building Akron, Ohio 44333 526 Superior Avenue, N.E. Cleveland, Ohio 44114 - 2 - DYKE, J.: The Kamens left their beloved dog, Bentley, with the appellee kennel, Royal York Pet Motel, for five days at the end of December 1990. When appellants retrieved Bentley from the kennel he was clearly not behaving in his normal energetic way. According to the Kamens's affidavits and deposition testimony, Bentley was lethargic and disoriented and did not recognize them. They took Bentley home where he collapsed. The Emergency Animal Clinic saw Bentley at 6:10 that evening. He died several hours later. The Emergency Animal Clinic diagnosed the cause of death as bronchopneumonia, dehydration and congestive heart failure. An autopsy confirmed the diagnosis. On December 18, 1992 appellants filed a complaint against appellees, individually and in their business capacity, alleging numerous claims. Appellees filed a motion for summary judgment on October 27, 1993, attaching an affidavit from appellee Stephen Horvath and three depositions taken from appellants. The Kamens consulted several veterinarians for their opinions regarding the cause of death and attached those opinions to their brief in opposition to appellees' motion for summary judgment. They also attached their affidavits and Bentley's medical records. The trial court granted appellees' motion for summary judgment, February 18, 1994. Appellants filed a timely notice of appeal asserting one assignment of error. - 3 - I THE TRIAL COURT ERRED IN GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT WHERE THERE EXISTED GENUINE ISSUES OF MATERIAL FACT TO BE DECIDED BY THE TRIER OF FACT. Appellants first argue that a genuine issue of material fact existed as to whether or not some instrumentality, under appellees' control, could have given Bentley bronchopneumonia. This argument is not well taken. Appellants had the burden to show under the theory of res ipsa loquitur that some instrumentality under appellees' control could have caused their dog to become ill. To apply res ipsa loquitur and establish the inference of negligence on the part of the defendant, a plaintiff must adduce evidence: (1) That the instrumentality causing the injury was, at the time of the injury, or at the time of the creation of the condition causing the injury, under the exclusive management and control of the defendant; and (2) that the injury occurred under such circumstances that in the ordinary course of events it would not have occurred if ordinary care had been observed. Hake v. Wiedemann Brewing Co. (1970), 23 Ohio St.2d 65, 66-67. "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." Wing v. Anchor Media, Ltd. of Texas (1991), 59 Ohio St.3d 108, paragraph three of the syllabus. Appellants failed to adduce any evidence of an instrumentality which could have caused the injury or that the injury occurred under circumstances that in the ordinary course of events it would not have occurred if ordinary care had been observed. - 4 - In appellants' affidavits they allege that appellees showed great indifference to Bentley's well-being by their failure to call the veterinarian when the dog did not eat properly and had emitted a bloody diarrhea, and by Stephen Horvath's repeated refusal to acknowledge Bentley's poor condition. These allegations do not support appellants' asserted theory of negligence under res ipsa loquitur. These allegations are not indicative of a situation where the injury would not have occurred had appellants exercised ordinary care. A dog could become ill and die, especially a ten and a half year old dog like Bentley, in a relatively short time, even in a situation where ordinary care is exercised. Even appellants' own veterinary opinions fail to support the assertion that Bentley would not have gotten ill or died without the lack of ordinary care by appellees. In fact Donald R. Bartels, D.V.M., stated that the "cause of Bentley's death is not related to Bentley's boarding at the Royal York Pet Motel." (attached to appellants' brief in opposition to defendants' motion for summary judgment). Appellants further argue that genuine issues of material fact exist on their claims for intentional and negligent infliction of emotional distress. Those issues are whether or not Bentley had a bloody diarrhea at the kennel, whether he was eating properly, was properly cared for and whether appellees made misrepresentations to appellants that Bentley would be fine when he returned home. These - 5 - are not genuine issues of material fact to defeat a motion for summary judgment. Even if Bentley had had some blood in his stool and was not eating properly at the kennel, these facts would not support appellants' claims of intentional or negligent infliction of emotional distress. These facts do not support appellants' claims of negligence, gross negligence or reckless indifference or intentional misconduct. These facts do not indicate that appellants were failing to exercise ordinary care in boarding Bentley. The assertions that appellees failed to adequately care for Bentley and made fraudulent misrepresentations to appellants are simply vague allegations. No specific facts are cited to support these assertions. 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 is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him. Finally, appellants claim that the court erred in granting appellees' motion for summary judgment on appellants' claims of punitive damages, intentional misconduct, malicious misconduct and reckless indifference because malice was shown by appellees' conduct. We can not agree with this argument. Malice is not evident from any of the facts asserted by affidavit or medical - 6 - record or veterinary opinion submitted by appellants into the record. Malice can be inferred in cases where there is proof of conduct: "(1) * * * characterized by hatred, ill will or a spirit of revenge, or (2) a conscious disregard for the rights and safety of other persons that has a great probability of causing substantial harm." David v. Schwarzwald, Robiner, Wolf & Rock Co., L.P.A. (1992), 79 Ohio App.3d 786, 800, quoting Preston v. Murty (1987), 32 Ohio St.3d 334. In the present case appellants assert that Horvath refused to acknowledge that Bentley was ill and showed great indifference to Bentley's condition. Malice might have been inferred if the veterinarians consulted had agreed that Bentley's condition would have been readily apparent for an extended period of time and the Horvaths clearly ignored a dying animal. However, this is not what the veterinarians considered a likely scenario in Bentley's case. All three veterinarians agreed that the onset of his illness would have taken place 12 - 24 hours before his death. This did not give appellees much time to notice a decline in energy or the opportunity to recognize it as illness. Donald R. Bartels, D.V.M., stated that the potential for medical emergencies increases with "unfamiliarity with a specific pet's normal behavior and changes in behavior of a pet stressed by being away from home in a kennel... especially true in elderly pets." (attached to appellants' brief in opposition to appellees' motion for summary judgment.) Hatred, ill - 7 - will, a spirit of revenge or conscious disregard for the rights and safety of those involved can not be inferred where a reasonable explanation exists for appellees' failure to assess Bentley's condition. Malice on the part of appellees can not be found from the facts as presented by appellants. The trial court properly granted summary judgment for the appellees on the claims of punitive damages, intentional misconduct, malicious misconduct and reckless indifference. No support in the law of Ohio exists for appellants' assertion that kennel operators should adhere to a higher standard of conduct than the standard of ordinary, reasonable care. The proposition that the burden of proof should have been shifted to appellees to show that they were not negligent in caring for Bentley is also without legal support. These arguments are without merit. Appellants failed to support their claims by way of any documentary evidence to overcome appellees' motion for summary judgment. Appellants could not show that anything other than a tragic, but natural, event occurred when their pet died. The Kamens could not articulate any specific actions or omissions to create liability on the part of the Horvaths for Bentley's death. Appellants' assignment of error is overruled. The trial court's ruling which granted summary judgment in favor of appellees is 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 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, J., AND KARPINSKI, J., CONCUR ANN DYKE PRESIDING JUDGE 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 .