[Cite as Widican v. Bridgestone/Firestone N. Am. Tire L.L.C., 2011-Ohio-6602.]


STATE OF OHIO                    )                         IN THE COURT OF APPEALS
                                 )ss:                      NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                 )

EUGENE THEODORE WIDICAN, et al.                            C.A. No.         25674

        Appellants

        v.                                                 APPEAL FROM JUDGMENT
                                                           ENTERED IN THE
BRIDGESTONE/FIRESTONE NORTH                                COURT OF COMMON PLEAS
AMERICAN TIRE LLC                                          COUNTY OF SUMMIT, OHIO
                                                           CASE No.   CV 2008-10-7328
        Appellee

                                 DECISION AND JOURNAL ENTRY

Dated: December 21, 2011



        CARR, Presiding Judge.

        {¶1}    Appellants, Gary Widican, executor of the estate of Eugene Widican, and Deidre

Hanlon, guardian of Otilla Widican, an incompetent person, appeal the judgment of the Summit

County Court of Common Pleas which granted summary judgment in favor of appellee,

Bridgestone Firestone North American Tire LLC (“Firestone”). This Court reverses.

                                                      I.

        {¶2}    Eugene Widican worked for Firestone for thirty years, during which time he was

allegedly exposed to toxic solvents and chemicals. He retired in 1981. Subsequently, he

developed acute myelogenous leukemia. In 2008, Mr. Widican filed a complaint sounding in

employer intentional tort against Firestone.           His wife Otilla alleged a claim for loss of

consortium. Eventually, an executor and guardian were substituted for the Widicans upon

Eugene’s death and Otilla’s determination of incompetence.
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          {¶3}   Firestone answered, generally denying the allegations in the complaint. The

company further asserted numerous affirmative defenses, including the assertions that the claims

were barred by immunity and the limitations of Ohio’s workers’ compensation law.

          {¶4}   Firestone filed a motion for summary judgment, arguing that the Widicans’ claims

were barred by the employer immunity provisions of Ohio’s workers’ compensation law. The

Widicans filed a response in opposition, Firestone replied, and the trial court held an oral hearing

on the motion. The trial court issued a judgment entry in which it granted summary judgment in

favor of Firestone on the Widicans’ claims. The Widicans filed a timely appeal, raising one

assignment of error for review.

                                                II.

                                  ASSIGNMENT OF ERROR

          “THE TRIAL COURT ERRED IN GRANTING THE DEFENDANT’S
          MOTION FOR SUMMARY JUDGMENT BECAUSE IT[]S RULING IS
          CONTRARY TO WELL ESTABLISHED PRINCIPLES OF OHIO LAW
          PROTECTING THE RIGHTS OF WORKERS[.]”

          {¶5}   The Widicans argue that the trial court erred by granting summary judgment on

the basis of employer immunity in favor of Firestone on the Widicans’ claims. This Court

agrees.

          {¶6}   This Court reviews an award of summary judgment de novo. Grafton v. Ohio

Edison Co. (1996), 77 Ohio St.3d 102, 105. This Court applies the same standard as the trial

court, viewing the facts in the case in the light most favorable to the non-moving party and

resolving any doubt in favor of the non-moving party. Viock v. Stowe-Woodward Co. (1983), 13

Ohio App.3d 7, 12.

          {¶7}   Pursuant to Civ.R. 56(C), summary judgment is proper if:
                                                 3


       “(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.” Temple v.
       Wean United, Inc. (1977), 50 Ohio St.2d 317, 327.

       {¶8}    To prevail on a motion for summary judgment, the party moving for summary

judgment must be able to point to evidentiary materials that show that there is no genuine issue

as to any material fact, and that the moving party is entitled to judgment as a matter of law.

Dresher v. Burt (1996), 75 Ohio St.3d 280, 293. Once a moving party satisfies its burden of

supporting its motion for summary judgment with sufficient and acceptable evidence pursuant to

Civ.R. 56(C), Civ.R. 56(E) provides that the non-moving party may not rest upon the mere

allegations or denials of the moving party’s pleadings. Rather, the non-moving party has a

reciprocal burden of responding by setting forth specific facts, demonstrating that a “genuine

triable issue” exists to be litigated for trial. State ex rel. Zimmerman v. Tompkins (1996), 75

Ohio St.3d 447, 449.

       {¶9}    It is axiomatic that the non-moving party’s reciprocal burden does not arise until

after the moving party has met its initial evidentiary burden. To do so, the moving party must set

forth evidence of the limited types enumerated in Civ.R. 56(C), specifically, “the pleadings,

depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence,

and written stipulations of fact[.]”     Civ.R. 56(C) further provides that “[n]o evidence or

stipulation may be considered except as stated in this rule.”

       {¶10} In its motion for summary judgment, Firestone argued that it was immune from

liability for an intentional tort because Mr. Widican had retired prior to the time when the Ohio

Supreme Court first recognized the existence of such a claim in 1982, in Blankenship v.

Cincinnati Milacron Chems., Inc. (1982), 69 Ohio St.2d 608, and expanded the scope of such a
                                                 4


claim to include injuries “substantially certain to occur” in 1984, in Jones v. VIP Dev. Co.

(1984), 15 Ohio St.3d 90, paragraph one of the syllabus. Firestone argued that the trial court

must conclude, pursuant to the considerations set forth in DiCenzo v. A-Best Prods. Co., Inc.,

120 Ohio St.3d 149, 2008-Ohio-5327, paragraph two of the syllabus, that the Supreme Court’s

holdings in Blankenship and Jones apply only prospectively. The company argued, therefore,

that the Widicans’ claims were compensable solely under Ohio’s workers’ compensation law,

rendering the company immune from liability.

       {¶11} The DiCenzo court reiterated the general rule that “[a]n Ohio court decision

applies retrospectively unless a party has contract rights or vested rights under the prior

decision.” Id. at paragraph one of the syllabus (Peerless Elec. Co. v. Bowers (1955), 164 Ohio

St. 209, followed.) It carved out the following exception, however, to be made in the discretion

of the court “to apply its decision only prospectively after weighing the following considerations:

(1) whether the decision establishes a new principle of law that was not foreshadowed in prior

decisions, (2) whether retroactive application of the decision promotes or retards the purpose

behind the rule defined in the decision, and (3) whether retroactive application of the decision

causes an inequitable result.” Id. at paragraph two of the syllabus.

       {¶12} A determination of the first two prongs clearly involves a question of law.

Whether it would be inequitable to apply the decision retroactively, however, necessarily

implicates case-specific factual considerations.     In this case, Firestone failed to support its

motion for summary judgment with any evidence of the types enumerated in Civ.R. 56(C). After

the trial court ruled on the motion for summary judgment and fully disposed of all pending

claims, Firestone filed a notice of filing of the affidavit of John Marcum. Because the affidavit

was not filed contemporaneously with the motion, it was not properly before the trial court for
                                                 5


consideration. Even were the affidavit properly filed for consideration, however, it contains no

evidence regarding the issue of inequity should the court apply the Blankenship and Jones

decisions retroactively. Firestone failed to submit any evidence regarding the time commitment,

financial burden, or other hardship it would incur if it were subjected to an intentional tort claim

arising out of an employment situation commencing sixty years ago and terminating thirty years

ago. In the absence of any such evidence, Firestone failed to meet its initial burden under

Dresher to demonstrate that no genuine issues of material fact existed and that the company was

entitled to judgment as a matter of law. Accordingly, the trial court erred by granting summary

judgment in favor of Firestone on the Widicans’ claims.          The sole assignment of error is

sustained.

                                                III.

       {¶13} The sole assignment of error is sustained. The judgment of the Summit County

Court of Common Pleas is reversed, and the cause remanded for further proceedings consistent

with this opinion.

                                                                               Judgment reversed,
                                                                              and cause remanded.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
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period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellee.




                                                    DONNA J. CARR
                                                    FOR THE COURT


WHITMORE, J.
DICKINSON, J.
CONCUR


APPEARANCES:

KIRK CLAUNCH, Attorney at Law, for Appellants.

GARY T. MANTKOWSKI, Attorney at Law, for Appellants.

DAVID J. HANNA, FRANK G. MAZGAJ, and ROBERT L. TUCKER, Attorneys at Law, for
Appellee.
