COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70664 KIMBERLY BOOZE, : : Plaintiff-Appellant : : JOURNAL ENTRY vs. : and : OPINION WILLIAM W. AMANS, : : Defendant-Appellee : DATE OF ANNOUNCEMENT OF DECISION : MARCH 27, 1997 CHARACTER OF PROCEEDING : Civil appeal from : Common Pleas Court : Case No. 270076 JUDGMENT : AFFIRMED IN PART, REVERSED : IN PART AND REMANDED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellant: Lawrence R. Hupertz 925 Euclid Avenue Suite 1995 Cleveland, Ohio 44115 For defendant-appellee: Kirk E. Roman J. Michael Creagan MEYERS, HENTEMANN, SCHNEIDER & REA 2100 Superior Building 815 Superior Avenue, N.E. Cleveland, Ohio 44114 -2- NAHRA, J.: Kimberly Booze, appellant, appeals the grant of summary judgment in favor of William Amans, appellee, in her complaint against him for negligence and battery. The factual record consists of deposition testimony of both appellant and appellee. Appellant and appellee had a relationship over the course of approximately two years. During that time they cohabitated, were engaged to be married, and terminated their engagement and relationship on more than one occasion. In May, 1993, appellant suspected that appellee was dating another woman, learned of the woman's address, and drove by her home twice to see if appellee was there. On her second trip, appellant saw appellee parked in the driveway in his pick-up truck. Appellant passed the home twice and parked on the street two homes away. Appellee left, appellant turned her car around, pursued and passed appellee, stopped in front of him, and got out of her car. Appellant's and appellee's testimony differs as to what next happened. Appellant testified that appellee stopped his truck and she approached it. She said that she reached to open the passenger door, appellee locked the passenger door, and sped away. In contrast, appellee testified that after appellant got out of her car, she screamed and yelled at him, ran at his truck, repeatedly hit his truck with her hands and arms, and hung on the door handle. He also stated that he never stopped his truck and -3- maintained his speed at five miles-per-hour until he had safely passed appellant's car. As appellee left the scene, the right rear tire of his truck ran over appellant's left leg. She suffered broken bones in her left foot, ankle, and leg, wore casts for four months, and required surgery. Appellant has one assignment of error: THE TRIAL COURT ERRED TO THE PREJUDICE OF THE APPELLANT BY GRANTING APPELLEE'S MOTION FOR SUMMARY JUDGMENT AS GENUINE ISSUES OF MATERIAL FACT EXIST, APPELLEE IS NOT ENTITLED TO JUDGMENT AS A MATTER OF LAW, AND REASONABLE MINDS CANNOT COME TO BUT ONE CONCLUSION WHICH IS ADVERSE TO THE APPELLANT. I. Appellant's complaint lists two counts: the first alleges that appellee's negligence caused her injuries; the second alleges that appellee committed a battery. We first address whether appellee is entitled to summary judgment as to appellant's complaint in negligence. On appeal, a grant of summary judgment is to be reviewed de novo. Brown v. Scioto Bd. of Comm'rs. (1993), 87 Ohio App.3d 704, 711, 622 N.E.2d 1153, 1158. A court may grant a motion for summary judgment pursuant to Civ.R.56 when it determines 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. -4- Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327, 364 N.E.2d 267, 274. In order to maintain a cause of action in negligence, the plaintiff must show that her injuries were proximately caused by the breach of defendant's duty owed to her. Menifee v. Ohio Welding Products, Inc. (1984), 15 Ohio St.3d 75, 77, 472 N.E.2d 707, 710, citing DiGildo v. Caponi (1969), 18 Ohio St.2d 125, 247 N.E.2d 732. "Whether a defendant owes a duty to a plaintiff depends upon the relationship between them. Whether a duty exists depends on the foreseeability of injury. Injury is foreseeable if a defendant knew or should have known that his act was likely to result in harm to someone." Huston v. Konieczny (1990), 52 Ohio St.3d 214, 556 N.E.2d 505, citations omitted. In this case, appellee has argued that he is entitled to summary judgment for three reasons: 1) he owed no duty of care to plaintiff because she was a trespasser to his personal property; 2) appellant is barred from recovery because she voluntarily assumed the risk of injury by her actions; and 3) that even if he was negligent, appellant's contributory negligence outweighed any fault on his part barring any recovery by appellant pursuant to the comparative negligence statute, R.C. 2315.19. A. Appellee's first argument, that appellant trespassed upon his personal property and that he owed her a lesser standard of care does not afford him a defense to appellant's negligence action. -5- Appellee alleges that by touching his car, appellant became a trespasser upon his personal property and that the only duty of care he then owed was to not act in a willful or wanton manner. Appellee relies on Cunningham v. Bell (1948), 149 Ohio St. 103, 77 N.E.2d 918 and The Union Gas & Electric Co. v. Crouch (1930), 123 Ohio St. 81, 174 N.E. 6, to assert that a person may be a trespasser on personal property. However, these cases do not provide the defense of trespass to chattel for negligence. Both Cunningham and Union Gas & Electric hold that an unauthorized passenger of an employee operating an employer's vehicle cannot bring an action in negligence against the employer because the unauthorized passenger is as a trespasser as to the owner. Cunningham, supra, syllabus paragraph 2; Union Gas & Electric Co., supra, syllabus paragraph 2. These cases stand for the proposition that vicarious liability for employee negligence will not be imposed upon employers for unauthorized passengers. Appellee has not cited to authority which specifically states that trespass to chattel is a defense to an action for the defendant's own negligence. Cunningham and Union Gas & Electric Co. are decided upon the issues of the scope of agency and whether to impose vicarious liability upon an employer, not whether to impose liability upon a negligent driver. For these reasons, appellee's first argument does not entitle him to summary judgment in this cause. Appellant testified that appellee had stopped his vehicle and that she attempted to open the door. Assuming that appellant's car was stopped on the street, he -6- owed a duty to refrain from moving his car "until such movement [could] be made with reasonable safety." R.C. 4511.38; see, also, Stoops v. Youngstown Suburban Transp. Co. (1929), 121 Ohio St. 437, 169 N.E. 456, syllabus paragraph 2, ("Driver of an automobile is under common-law duty to exercise ordinary care not to injure other persons on highway....") Because appellant's deposition testimony establishes a prima facie case in negligence, appellee is not entitled to summary judgment. B. Appellee's second argument is that appellant assumed the risk of injury by approaching his car. He argues that she should have known that he might speed away and she therefore assumed a known risk. Although Ohio adopted a system of comparative negligence, the defense of assumption of risk still exists to bar recovery by a plaintiff who has consented to encounter a known risk. See, Gallagher v. Cleveland Browns Football Co. (1996), 74 Ohio St.3d 427, 431, 659 N.E.2d 1232, 1236. Assumption of risk as a defense to negligence survives in two forms; 1) express assumption of risk, that which is contractual, and 2) primary assumption of risk, "meaning that no duty was owed by the defendant to protect the plaintiff from [a] specific risk" because the risk encountered is so "directly associated with the activity in question" that it creates no jury issue to be decided. Id., citing Cincinnati Baseball Club v. Eno (1925), 112 Ohio St. 175, 147 N.E. 86. Appellee owed appellant a duty to operate his car in a reasonably safe manner. See, R.C. 4511.38; Stoops, supra. Because -7- appellant testified that appellee stopped his car and she believed he reached to unlock the passenger door (although he had in fact locked the door), it cannot be said that she encountered any risk in attempting to open the door. However, as the facts are in dispute, whether appellee violated his duty to appellant can only be decided by a jury. C. Appellee's third argument for summary judgment is that appellant's own negligence was a greater cause of her injuries than any negligence on his part and therefore, pursuant to R.C. 2315.19, he is entitled to judgment as a matter of law. Ohio's comparative negligence statute, R.C. 2315.19, provides that the plaintiff is not entitled to recover if her fault is greater than that of the defendant. Generally, where the defendant has raised the defense of plaintiff's contributory negligence, the degree of fault on the part of the parties is to be determined by a jury "unless the evidence is so compelling that reasonable minds can reach but one conclusion." Borchers v. Winzeler Excavating Co. (1992), 83 Ohio App. 268, 277-78, 614 N.E.2d 1065, 1071, citing Hitchens v. Hahn (1985), 17 Ohio St.3d 212, 478 N.E.2d 797. We believe that the factual disputes give rise to widely varied interpretations of the amount of fault attributable to the parties in this case. There is a significant difference in assessing the fault of one who grabs and holds onto a moving vehicle as opposed to one who grabs the door handle of a stationary vehicle which suddenly and without warning accelerates. Because -8- appellant's fault, if any, cannot be ascertained until the jury determines what occurred, summary judgment is inappropriate. Accordingly, we find the grant of summary judgment as to appellant's claim of negligence was improper, reverse that determination, and remand this cause for further proceedings. II. In addition to a claim of negligence, appellant has made a claim for battery. In order to prove that a defendant has committed battery it is necessary to show that the defendant knew, or was substantially certain, that his conduct would cause a harmful or offensive contact with plaintiff. Love v. Port Clinton (1988), 37 Ohio St.3d 98, 99, 524 N.E.2d 166, 167, citing Restatement of the Law 2d, Torts (1965) 25, Section 13. Where a defendant asks for summary judgment by showing that the plaintiff is unable to prove an essential element of his claim, and the plaintiff subsequently does not set forth specific facts showing that there is a genuine issue for trial, then summary judgment may be entered in favor of the defendant. Dresher v. Burt (1996), 75 Ohio St.3d 280, 293, 662 N.E.2d 264, 274. Appellee argues that appellant has failed to present sufficient evidence to maintain a cause of action, arguing that the record is void of evidence of his intent to hit appellant. We agree. Appellant has failed to demonstrate that appellee intended that his truck run her over. Additionally, even considering the factual dispute, it cannot be said that his conduct would lead him -9- to be substantially certain he would injure appellant. Appellee is entitled to summary judgment as to the count alleging battery. Affirmed in part, reversed in part and remanded. -10- This cause is affirmed in part, reversed in part and remanded for proceedings consistent with this opinion. Costs to divided equally between plaintiff-appellant and defendant-appellee. 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. BLACKMON, P.J., and McMONAGLE, TIMOTHY E., J., CONCUR. JOSEPH J. NAHRA JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .