COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69684 ANTHONY GOODRUM, A MINOR : ET AL. : : Plaintiffs-appellants : : JOURNAL ENTRY -vs- : AND : OPINION GREATER CLEVELAND REGIONAL : TRANSIT AUTHORITY : : Defendant-appellee : : DATE OF ANNOUNCEMENT OF DECISION: AUGUST 8, 1996 CHARACTER OF PROCEEDING: Civil appeal from Court of Common Pleas Case No. CV-276767 JUDGMENT: Reversed and Remanded. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiffs-Appellants: For Defendant-Appellee: E. YVONNE HARRIS, ESQ. NANCY GERVINSKI, ESQ. WATSON & WATSON G.C.R.T.A. 1367 East 6th Street, Suite 400 615 Superior Avenue, N.W. Cleveland, Ohio 44114 Cleveland, Ohio 44113 MICHAEL TROY WATSON, ESQ. WATSON & WATSON 1367 East Sixth Street Cleveland, Ohio 44114 - 2 - DYKE, J.: Plaintiffs Anthony Goodrum, a minor, and his mother appeal from the order of the trial court which awarded summary judgment to defendant Greater Cleveland Regional Transit Authority (hereafter referred to as "RTA") in plaintiff's negligence action. For the reasons set forth below, we reverse and remand for further proceedings. On September 13, 1994, plaintiffs filed this action against RTA and John Doe, bus operator, alleging that on or about September 14, 1992, while they were passengers on an RTA bus operated by Doe, Doe smoked a cigarette while operating the bus and the smoke from the cigarette caused Anthony to suffer an asthma attack. Service was not perfected as to the bus operator. RTA denied liability and moved for summary judgment. In its motion, RTA maintained that Anthony had extensive problems with asthma prior to the alleged incident, that medical records show that Anthony was taken to the emergency room for problems associated with a cold, and that the medical evidence "strongly suggests [that this incident was] another asthma attack precipitated by a `cold'." RTA also included excerpts of Laverne Goodrum's deposition testimony in which she stated that Anthony experiences asthma attacks when he is near cigarette smoke, that while on the bus he began to cough and experienced an asthma attack, and that she took him to the hospital later that night and explained to emergency room personnel that he had been exposed to smoke on the bus. - 3 - In opposition, plaintiffs submitted a sworn statement from Carl A. Robson, M.D., Anthony's physician, which stated as follows: Cigarette smoke is toxic and noxious to normal lungs, especially children. Its effect is compounded in an asthmatic, who in the presence of cigarette smoke can develop bron- chospasm and begin a cycle of wheezing and shortness of breath that can gradually or rapidly develop into a full-blown asthma attack which could easily require hospitalization. Tony Goodrum is an asthmatic under my care. Smoking in his presence on an RTA bus certainly could cause or aggravate his episode of asthma at that time. On September 15, 1995, the trial court granted RTA's motion for summary judgment and plaintiffs now appeal. Plaintiffs' assignment of error states: THAT THE TRIAL COURT ERRED AND ACTED CONTRARY TO LAW WHEN IT GRANTED DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND DISMISSED THE CASE WITH PREJUDICE WHEN EVIDENCE WAS CLEAR THAT THERE REMAINED A GENUINE ISSUE AS TO FACT. Within this assignment of error, plaintiffs maintain that summary judgment was improperly granted in this instance since there are genuine issues of material fact as to whether plaintiffs can establish that Anthony's asthmatic episode was caused by cigarette smoke on the bus. In opposition, RTA maintains that because Anthony's medical records do not mention cigarette smoke, and instead mention that he had a cold, it is entitled to judgment. RTA further asserts that Dr. Robson's statement, submitted in opposition to the motion, did not meet the requisite standard of medical certainty. Since RTA did not meet its initial burden of demonstrating that it was entitled to judgment as a matter of law, - 4 - pursuant to the supreme court's decision in Dresher v. Burt (1996), 75 Ohio St.3d 280, we will not evaluate the merit of plaintiffs' opposing materials. Summary judgment is appropriately rendered when "(1) [n]o 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." Turner v. Turner (1993), 67 Ohio St.3d 337, 340, citing Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327. Since summary judgment is a shortcut through the normal litigation process, the burden of establishing that the material facts are not in dispute and that there is no genuine issue of material fact is upon the movant. Turner v. Turner, supra. Thus, where the movant seeks summary judgment on the ground that the moving party cannot prove its case, the movant bears the initial burden of informing the trial court of the basis for its motion, and identifying those portions of the record that demonstrate the absence of a genuine issue of material fact on the essential elements of the nonmovant's claims. Dresher v. Burt, supra, at 293. The supreme court explained: The moving party cannot discharge its initial burden under Civ.R. 56 simply by making a conclusory assertion that the nonmoving party has no evidence to prove its case. Rather, the moving party must be able to - 5 - specifically point to some evidence of the type listed in Civ.R. 56(C) which affirmatively demonstrates that the nonmoving party has no evidence to support the nonmoving party's claims. If the moving party fails to satisfy its initial burden, the motion for summary judgment must be denied. However, if the moving party has satisfied its initial burden, the nonmoving party then has a reciprocal burden outlined in Civ.R. 56(E) to set forth specific facts showing that there is a genuine issue for trial and, if the nonmovant does not so respond, summary judgment, if appropriate, shall be entered against the nonmoving party. Id. Finally, it is clear that in determining whether there is an evidentiary conflict which precludes the award of summary judgment, the trial court must view the record in a light most favorable to the nonmovant. Kunkler v. Goodyear Tire & Rubber Co. (1988), 36 Ohio St.3d 135, 138. The court may not resolve a credibility issue which arises from a conflict over a fact to be proved. Turner v. Turner, supra, at 341. Similarly, equivocal responses from the same party may create an evidentiary conflict regarding a fact to be proved. See Turner v. Turner, supra. By application of the foregoing, we conclude that RTA's motion for summary judgment was erroneously granted. RTA's motion did not establish that there is no genuine issue of fact regarding proximate cause. That is, construing the evidentiary materials in a light most favorable to plaintiffs, as we must, we note that the materials do indicate that Anthony had a cold but do not indicate that the attack was caused by a cold and not by exposure to smoke. At best, the evidentiary materials were equivocal as to causation. We hasten to add, however, that we make no determination as to - 6 - whether plaintiffs will meet their ultimate burden of proving causation and the remaining elements of their cause of action, but merely hold that summary judgment was improperly awarded to RTA in this instance. Reversed and remanded for further proceedings consistent with this opinion. - 7 - This cause is reversed and remanded to the lower court for further proceedings consistent with this opinion. It is, therefore, considered that said appellants recover of said appellee their costs herein. It is ordered that a special mandate be sent to said 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. HARPER, P.J., CONCURS. O'DONNELL, J., DISSENTS (SEE ATTACHED DISSENTING OPINION) ANN DYKE 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 and time period for review will begin to run. COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69684 : ANTHONY GOODRUM, A MINOR, ET AL. : : : DISSENTING Plaintiff-Appellants : : OPINION vs. : : : GREATER CLEVELAND REGIONAL TRANSIT : AUTHORITY : : Defendant-Appellee : : DATE: AUGUST 8, 1996 O'DONNELL, J., DISSENTING: I respectfully dissent from the majority opinion because the element of proximate cause has not been established by the plaintiffs in this case. In my view the majority opinion correctly sets forth applicable case law. Citing Dresher v. Burt (1996), 75 Ohio St.3d 280, at 293, the majority opinion states: * * * However, if the moving party has satisfied its initial burden, the nonmoving party then has a reciprocal burden outlined in Civ.R. 56 (E) to set forth specific facts showing that there is a genuine issue for trial and, if the nonmovant does not so respond, summary judgment, if appropriate, shall be entered against the nonmoving party. In this case, the majority then states as follows: - 2 - * * * we note that the materials do indicate that Anthony had a cold but do not indicate that the attack was caused by a cold and not by exposure to smoke. (Emphasis added.) It is with this analysis that I differ because it is not the burden of the defendant to prove proximate cause but rather it is the burden of the plaintiff upon the issue being raised to meet its "reciprocal burden outlined in Civ. R. 56(E) to set forth specific facts showing that there is a genuine issue for trial * * *," Dreshler, supra. The record reveals in this case that the Regional Transit Authority filed its motion for summary judgment on May 4, 1995 in which it challenged the lack of proximate cause. Instead of providing an affidavit which complied with the requirements of Civ. R. 56(E) in opposition to this motion, plaintiff xeroxed a copy of a handwritten medical report under the date of August 14, 1995, which had been sent to plaintiff's counsel, had the doctor re-sign that document, and then merely notarized the doctor's signature. Hence, the statements contained in this report are not even sworn statements and therefore are not proper for consideration pursuant to Civil R. 56 (C) or (E). Thus, in my view, the plaintiffs fail in their reciprocal burden to set forth specific facts to show a genuine issue for trial and the trial court therefore properly granted summary .