I respectfully dissent and conclude that the trial court properly granted the appellees' motion for summary judgment.
Civ. R. 56(E) provides:
"Form of affidavits; further testimony; defense required. Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions or by further affidavits. When a motion for summaryjudgment is made and supported as provided in this rule, anadverse party may not rest upon the mere allegations or denialsof his pleadings, but his response, by affidavit or as otherwiseprovided in this rule, must set forth specific facts showing thatthere is a genuine issue for trial. If he does not so respond,summary judgment, if appropriate, shall be entered against him." (Emphasis added.)
In Citizens Ins. Co. v. Burkes (1978), 56 Ohio App. 2d 88 [10 O.O.3d 119], paragraph two of the syllabus, this court stated:
"When a party moves for summary judgment and supports his motion with evidentiary documents such as affidavits, depositions, answers to interrogatories, written admissions, transcripts of evidence in the pending case, or written stipulations of fact, the party opposing the motion for summary judgment may not rest upon the mere allegations or denials in his pleadings, but his response by affidavit or as otherwise provided in Civ. R. 56(C) must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if otherwise appropriate, shall be entered against him."
We went on to say the following in *Page 261 Goldman v. Transportation Leasing (Feb. 19, 1981), Cuyahoga App. No. 42480, unreported:
"This court held in Citizens Ins. Co. v. Burkes (1978), 56 Ohio App. 2d 88 [10 O.O.3d 119], that where a movant files evidentiary material to support his motion for summary judgment, an opposing party may not rely on the mere allegations or denials of his pleadings but must also file evidentiary material as provided for in Civil Rule 56(C) to demonstrate that a genuine issue of material fact exists for trial.
"In order to prevail on appeal, plaintiff must demonstrate either that there existed a genuine issue of material fact between the parties or that the defendant was not entitled to judgment as a matter of law."
In this case there is no dispute as to the facts. Both parties agree that the incident occurred as the appellant says it did. In fact, the appellees attached the appellant's deposition to their motion for summary judgment as evidentiary support.
Therefore, the only issue is whether the appellees were entitled to judgment as a matter of law. In Howard v. Rogers (1969), 19 Ohio St. 2d 42, 46-47 [48 O.O.2d 52], the court stated:
"Such an occupier of premises for business purposes may be subject to liability for harm caused to such a business invitee by the conduct of third persons that endangers the safety of such invitee, just as such occupier may be subject to liability for harm caused to such invitee by any dangerous condition of those premises. Holdshoe v. Whinery (1968), 14 Ohio St. 2d 134 [43 O.O.2d 240], 237 N.E.2d 127; Restatement of the Law, Torts 2d, Section 344. See Sherlock v. Strouss-Hirshberg Co. (1936),132 Ohio St. 35 [7 Ohio Op. 92], 4 N.E.2d 912; Johnson v. WagnerProvision Co. (1943), 141 Ohio St. 584 [26 Ohio Op. 161],49 N.E.2d 925; Campbell v. Hughes Provision Co. (1950), 153 Ohio St. 9 [41 Ohio Op. 107], 90 N.E.2d 694; Kokinos v. Ohio Greyhound, Inc. (1950), 153 Ohio St. 435 [41 Ohio Op. 430], 92 N.E.2d 386.
"However, it is well settled that an occupier of premises for business purposes is not an insurer of the safety of his business invitees while they are on those premises. Holdshoe v. Whinery,supra (14 Ohio St. 2d 134 [43 O.O.3d 240]); Johnson v. WagnerProvision Co., supra (141 Ohio St. 584 [26 Ohio Op. 161]); Prosser on Torts (3 Ed.), 402, Section 61.
"Thus, where an occupier of premises for business purposes does not, and could not in the exercise of ordinary care, know of a danger which causes injury to his business invitee, he is not liable therefor. Johnson v. Wagner Provision Co., supra (141 Ohio St. 584 [26 Ohio Op. 161]); Sherlock v. Strouss-Hirshberg Co., supra (132 Ohio St. 35 [7 Ohio Op. 92]); Holdshoe v. Whinery, supra (14 Ohio St. 2d 134 [43 O.O.2d 240]), at 138; Restatement of the Law, Torts 2d, Section 344, Comment f; Prosser on Torts (3 Ed.), 405, Section 61; annotation, liability of proprietor for injury to customer or patron caused by pushing, crowding, etc. of other patrons, 20 A.L.R. 2d 8, 25; annotation, liability of owner or operator of theatre or other amusement for assault on patron by another patron, 29 A.L.R. 2d 911, 915.
"As stated in Comment f to Section 344 of the Restatement of the Law, Torts 2d:
"`Since the possessor is not an insurer of the visitor's safety, he is ordinarily under no duty to exercise any care until he knows or has reason to know that the acts of the third person are occurring or are about to occur. * * *'"
The affidavit of Mrs. Finklea stated that she had no reason to know that violence had been or would be taking place in the restaurant's restrooms and that since she had bought the restaurant two years before this incident no one had been assaulted in the restaurant as far as she knew. There were no facts to contradict her statement. To comply with *Page 262 Civ. R. 56(E) it was necessary for the appellant to respond to the motion for summary judgment and not merely to rest on the allegations of the complaint. The trial court did not err when it granted summary judgment to the appellees.