I respectfully dissent with the opinion of the majority and would affirm the judgment of the trial court.
I am in accord on the summary judgment standard applicable to this case and the standard of review on appeal. However, the appellant may not create irrelevant or unnecessary factual disputes to prevent the grant of summary judgment. Wall v. Firelands Radiology, Inc. (Sept. 1, 1995), Butler App. H-94-048, unreported citing Anderson v. Liberty Lobby, Inc. (1986), 477 U.S. 242, 247 and Perez v. Scripps Howard Broadcasting (1988), 35 Ohio St.3d 215.
In the case sub judice, appellant is using inconsistencies between its own agents to create issues of fact. Appellant cites inconsistencies in testimony between Eugene Leson, the Youngstown Water Department Engineer, Thomas Mirante, the Youngstown Waste Water Department Engineer and Richard Popio, President of W.R.C.
A review of the record indicates the appellant attempts to create genuine issues of material fact where none exist.
In this case the City of Youngstown failed in its reciprocal burden to prove the existence of genuine issues of material fact and summary judgment for the appellee, W.R.C. is appropriate. See Dresher v. Burt (1996), 75 Ohio St.3d 280.