Opinion
Case No. 2019 CA 0096
07-07-2020
ALFRED CHAN Plaintiff-Appellant v. BUCKEYE NAILS, et al. Defendants-Appellees
APPEARANCES: For Plaintiff-Appellant JACEDA BLAZEF, ESQ. 409 Park Avenue West Mansfield, Ohio 44906 For Defendants-Appellees THOMAS M. COUGHLIN, JR. Ritzler, Coughlin, & Paglia, Ltd. 1360 E. 9th Street - Suite #500 Cleveland, Ohio 44114
JUDGES: Hon. William B. Hon. John W. Wise, J. Hon. Craig R. Baldwin, J.
OPINION
CHARACTER OF PROCEEDINGS: Appeal from the Richland County Court of Common Pleas, Case No. 2018 CV 0339 JUDGMENT: Affirmed APPEARANCES: For Plaintiff-Appellant JACEDA BLAZEF, ESQ.
409 Park Avenue West
Mansfield, Ohio 44906 For Defendants-Appellees THOMAS M. COUGHLIN, JR.
Ritzler, Coughlin, & Paglia, Ltd.
1360 E. 9th Street - Suite #500
Cleveland, Ohio 44114 Hoffman, P.J.
{¶1} Plaintiff-appellant Alfred Chan, Individually and as the Administrator of the Estate of Helen Jo Chan, appeals the September 25, 2019 Judgment Entry entered by the Richland County Court of Common Pleas, which granted summary judgment in favor of defendants-appellees Buckeye Nails, et al.
STATEMENT OF THE CASE AND FACTS
{¶2} Appellant is the widower of Helen Jo Chan ("Decedent"). Decedent, who was 53 years old at the time of her passing, suffered from a number of pre-existing medical conditions, including diabetes, congestive heart failure, coronary artery disease, obstructive sleep apnea, hypertension, and esophageal reflux disease. In the years prior to her death, Decedent also underwent numerous medical procedures, including a stent implant in 2012, by-pass surgery in May, 2014, and kidney dialysis three days/week.
{¶3} Appellee Buckeye Nails is a nail salon located in Mansfield, Richland County, Ohio. Appellee Bach-Xuyen Dinh is the owner and operator of Buckeye Nails. Appellee Sandy Nguyen is employed as a manicurist at Buckeye Nails. Decedent patronized Buckeye Nails for manicure services sometime around November, 2014. Decedent's left hand index and ring fingers were burned by the drill used during the manicure. Decedent was treated at the emergency room following the incident.
{¶4} Decedent died on January 13, 2015, while an inpatient at Mansfield MedCentral Health System. Her death was not referred to the coroner and an autopsy was not performed. Dr. Bhazat Youseff certified Decedent's death, listing the immediate cause of death as cardiac arrest due to or as a consequence of metabolic acidosis with the approximate interval between onset and death being "days" and due to or as a consequence of cellulitis with the approximate interval between onset and death being "days". The death certificate listed the manner of death as natural.
{¶5} On May 23, 2018, Appellant, individually and as the administrator of Decedent's estate filed a complaint against Appellees, asserting claims of wrongful death/negligence and loss of consortium. Appellant alleged, after Decedent was burned during a manicure due to Appellees' negligence, she developed cellulitis and metabolic acidosis and these conditions directly and proximately caused her death.
The current case is a re-filing of Richland County Court of Common Pleas Case No. 2016 CV 0552, which Appellant voluntarily dismissed pursuant to Civ. R. 41(A)(1) on May 25, 2017. --------
{¶6} On April 15, 2019, Appellees filed a motion for summary judgment, arguing Appellant failed to meet his burden of production on the issue of causation. Appellees maintained, although Appellant alleged Decedent's "death was caused by work done" by Appellees, Appellant "failed to produce any evidence, beyond mere conjecture and hearsay, that Plaintiff's decedent died as a result of the manicure." Motion for Summary Judgment at 5. Appellees further asserted Appellant "has not come forward with expert evidence to establish the alleged injury and/or resulting death was caused by [their negligence]." Id. at 9.
{¶7} In his brief in opposition, Appellant argued, pursuant to R.C. 313.19 and Vargo v. Travelers Ins. Co., 34 Ohio St.3d 27, 516 N.E.2d 226 (1987), the coroner's findings are a determination of a medical expert on a medical question. Appellant concludes, because Appellees did not rebut the coroner's factual determination as to Decedent's cause of death such determination shall be accepted in this case. In support of his position, Appellant attached a copy of Decedent's death certificate. In reply, Appellees asserted, despite the death certificate, a time discrepancy existed between Decedent's cause of death, date of death, and the date of the manicure; therefore, Appellant "must have an expert to connect the cause of death to the alleged manicure, and he has failed to provide any such testimony." Defendants' Reply Brief in Support of Defendants' Motion for Summary Judgment at 2, unpaginated.
{¶8} Via Judgment Entry filed September 25, 2019, the trial court granted summary judgment in favor of Appellees. The trial court found Appellant failed to demonstrate the injury Decedent sustained during her manicure at Appellees' salon proximately caused Decedent's death.
{¶9} It is from this judgment entry Appellant appeals, raising the following assignment of error:
THE TRIAL COURT ERRED AS A MATTER OF LAW AND PURSUANT TO RULE 56 OF THE OHIO RULES OF CIVIL PROCEDURE IN GRANTING APPELLEES' MOTION AS THERE IS GENUINE ISSUE OF MATERIAL FACT AND APPELLEES ARE NOT ENTITLED TO JUDGMENT AS A MATTER OF LAW.
STANDARD OF REVIEW
{¶10} Summary judgment proceedings present the appellate court with the unique opportunity of reviewing the evidence in the same manner as the trial court. Smiddy v. The Wedding Party, Inc., 30 Ohio St.3d 35, 36, 506 N.E.2d 212 (1987). As such, this Court reviews an award of summary judgment de novo. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996).
{¶11} Civ.R. 56 provides summary judgment may be granted only after the trial court determines: 1) no genuine issues as to any material fact remain 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., 50 Ohio St.2d 317, 364 N.E.2d 267 (1977).
{¶12} It is well established the party seeking summary judgment bears the burden of demonstrating that no issues of material fact exist for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 330, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1987). The standard for granting summary judgment is delineated in Dresher v. Burt, 75 Ohio St.3d 280 at 293, 662 N.E.2d 264 (1996): " * * * a party seeking summary judgment, on the ground that the nonmoving party cannot prove its case, bears the initial burden of informing the trial court of the basis for the motion, and identifying those portions of the record that demonstrate the absence of a genuine issue of material fact on the essential element(s) of the nonmoving party's claims. The moving party cannot discharge its initial burden under Civ.R. 56 simply by making a conclusory assertion the nonmoving party has no evidence to prove its case. Rather, the moving party must be able to specifically point to some evidence of the type listed in Civ.R. 56 which affirmatively demonstrates 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 to set forth specific facts showing 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." The record on summary judgment must be viewed in the light most favorable to the opposing party. Williams v. First United Church of Christ, 37 Ohio St.2d 150, 309 N.E.2d 924 (1974).
I
{¶13} Appellant contends the trial court erred in granting summary judgment in favor of Appellees as Appellees failed to meet their burden of demonstrating there were no disputed material facts. Specifically, Appellant submits "[t]here are material facts in dispute for the jury to decide as to the causation of the cellulitis and metabolic acidosis which were certified consequently causing the death of [Decedent]." Brief of Appellant at 6.
{¶14} "When the death of a person is caused by wrongful act, neglect, or default which would have entitled the party injured to maintain an action and recover damages if death had not ensued, the person who would have been liable if death had not ensued * * * shall be liable to an action for damages." R.C. 2125.02(A)(1). In order to establish a claim of wrongful death based upon a theory of negligence, the plaintiff must show (1) the existence of a duty owing to the plaintiff's decedent, (2) a breach of that duty, and (3) proximate causation between the breach of the duty and the death. Thompson v. Wing, 70 Ohio St.3d 176, 184, 637 N.E.2d 917 (1994), citing, 1 Speiser, Recovery for Wrongful Death (2 Ed.1975) 64, Section 2:1.
{¶15} In granting summary judgment, the trial court found Appellant had failed to establish, through a medical expert, a causal connection between the manicure injury and Decedent's death. As he did in the trial court, Appellant argues, pursuant to R.C. 313.19, "given the facts of this case, the death certificate must be construed as the 'legally accepted manner and mode in which such death occurred'." Brief of Appellant at 7. We disagree.
{¶16} R.C. 313.19 provides:
The cause of death and the manner and mode in which the death occurred, as delivered by the coroner and incorporated in the coroner's verdict and in the death certificate filed with the division of vital statistics, shall be the legally accepted manner and mode in which such death occurred, and the legally accepted cause of death, unless the court of common pleas of the county in which the death occurred, after a hearing, directs the coroner to change his decision as to such cause and manner and mode of death.
{¶17} We find Appellant's reliance on R.C. 313.19 is misplaced. R.C. 313.19 specifically applies to the findings of the coroner. Decedent's case was not referred to the coroner and an autopsy was not performed. In addition, we find the death certificate is insufficient to establish a causal link between the manicure injury and the development of cellulitis and metabolic acidosis. Because Appellant cannot meet his burden of establishing proximate cause, we find the trial court did not err in granting summary judgment in favor of Appellees. Appellant has failed to establish the development of cellulitis and metabolic acidosis was the result of Appellees' negligence. The death certificate indicates the approximate interval between the onset of cellulitis and metabolic acidosis and Decedent's death was "days". Decedent sustained the manicure injury in November, 2014, and passed away January 13, 2015. This time period does not meet the definition of "days" in any interpretation of the word.
{¶18} Appellant's sole assignment of error is overruled.
{¶19} The judgment of the Richland County Court of Common Pleas is affirmed. By: Hoffman, P.J. Wise, John, J. and Baldwin, J. concur