COURT OF COMMON PLEAS
FAIRFIELD COUNTY, OH


ROBERT A. NEINAST
Plaintiff,
v.
BOARD OF TRUSTEES OF THE
FAIRFIELD COUNTY DISTRICT
LIBRARY,
Defendants.

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Case No. 09 CV 0657

Judge Chris Martin


RESPONSE TO DEFENDANTíS MOTION FOR CONTINUANCE OF EVIDENTIARY HEARING
AND
MOTION TO CONVERT EVIDENTIARY HEARING TO NON-ORAL HEARING

Now comes Plaintiff Robert A. Neinast, who respectfully moves the court to convert the evidentiary hearing scheduled for December 16 to a non-oral hearing, or in the alternative, clarify that the purpose of the hearing is to examine the already submitted evidence and not to admit new evidence. In the case the court does convert the evidentiary hearing to a non-oral hearing, Defendantís Motion for a Continuance is unnecessary. A memorandum in support is attached.


  Respectfully submitted,
_______________________
Robert A. Neinast, Plaintiff
8617 Ashford Lane
Pickerington, OH 43147
Phone: (614) 759-1601
Email: neinast@att.net


MEMORANDUM IN SUPPORT

Plaintiff contends there is no need in this case for a continuance so that Defendantís new counsel can ďmeet with and prepare witnessesĒ since the remand from the Court of Appeals merely requires that this Court examine the evidence already submitted for this case. Since this Court had originally decided the case based solely on collateral estoppel, it had not examined the evidence germane to Neinastís original Motion for Summary Judgment. In particular, this Court did not determine if there were any hazards in the Library that justified its shoe rule. The purpose of the remand is so that this Court can examine that evidence in the context of Plaintiff's Summary Judgment motion. Then, if there is no material fact demonstrating such a hazard, the question is whether the Library can nonetheless make its rule prohibiting bare feet.

The relevant portion of the Court of Appeals' opinion, referring to the authority of the Library to make a shoe rule, 2010-Ohio-5569 at ¶56, says:

We remand this case to the trial court to determine if in fact appellee can establish reasons for the footwear rule that applies specifically to appellee.

The Court of Appeals went on to say, at ¶66:

This does not mean that the authority sub judice is unfettered, but requires an examination of the relationship of the shoes requirement to health and public safety.

Because this Court previously granted summary judgment to the Library based solely on collateral estoppel, it did not examine at that time the factual basis for Neinastís Motion for Summary Judgment. The remand is to allow this Court to do exactly that, but there is no need for this Court to reopen the factual foundation of this case. All that is necessary to do is to make a proper examination of the evidence already in the record.

The standard for determining Neinastís Motion for Summary Judgment was

Civ.R. 56(C) provides that before summary judgment may be granted, it must be determined that (1) no genuine ssue 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 nonmoving party, that conclusion is adverse to the party against whom the motion for summary judgment is made. State ex rel. Zimmerman v. Tompkins, 75 Ohio St.3d 447, 448, 1996-Ohio-211.

Furthermore, after Neinast satisfied his initial burden of informing the trial court of the basis for his motion, and specifically pointed to some evidence of the type listed in Civ.R. 56(C), the burden shifted to the Library to set forth specific facts showing that there was a genuine issue for trial and, if the Library did not so respond, summary judgment, if appropriate, had to be entered against it. See Dresher v. Burt (1996), 75 Ohio St.3d 280, 292-293. Since the Library did not meet its burden, there are no material facts in dispute and Summary Judgment for Neinast is appropriate.

Plaintiff reminds this Court:

  • that the Library, in its Response to Interrogatories, ¶¶9-10, knew of no hazards to barefooted patrons;

  • that Plaintiff carefully examined the Library on his visits there and saw no hazards to barefooted patrons, Neinast Aff. ¶13;

  • that the Library has insurance that contains no provision that the Library ban barefooted patrons, Resp. to Interr. ¶6, Exhibit 2, so barefooted patrons do not impact the Libraryís fiscal integrity;

  • that the Library admitted that a barefooted patron was not disruptive to a library environment, Resp. to Interr. ¶21;

  • that the Library allows children with bare legs to sit on the floor that it claims is too dangerous for bare feet, Resp. to Interr. ¶14 and Neinastís Memo Contra Libraryís Motion to Dismiss, Att. 2.

All of these material facts were not contested by the Library, even though the burden was on it to do so. All of these material facts show that the Libraryís footwear rule serves no ďproperĒ purpose. Furthermore, the Library, as a matter of law, has statutory immunity from lawsuits, so even if there were somehow some sort of barefooted injury, it would not be liable (just as it would not be iable for some sort of high-heeled injury). Even when interpreted most favorably to the Library, there are still no genuine issues of material fact for trial. There is no evidence of any sort that the Library environment is in any way hazardous to a barefooted person. Summary Judgment for Plaintiff is still appropriate and should be based on the evidence already in the record.

The Library already had its chance to demonstrate the existence of genuine hazards. It did not do so yet it expects yet another bite from that apple. Instead of a full Evidentiary Hearing with new witnesses and new evidence, this Court should examine the existing Civ.R. 56 evidence in a non-oral hearing, or, if the Court has questions about that evidence, conduct an Evidentiary Hearing limited in scope to clarification of that evidence. Then the Court should apply the standard appropriate to Neinastís Motion for Summary Judgment and grant his original motion.

Thus, Plaintiff moves this court to either convert the Evidentiary Hearing to a non-oral hearing, or in the alternative to clarify that any oral hearing is limited to discussion of the Civ.R. 56 evidence already in the record.

Finally, Plaintiff would like to inform the Court that he filed an Application for Reconsideration with the Court of Appeals on November 24, 2010. It might be appropriate to continue the non-oral evidentiary hearing until the Court of Appeals has responded to that Application.



  Respectfully submitted,
_______________________
Robert A. Neinast
Plaintiff, pro se
8617 Ashford Lane
Pickerington, OH 43147
Phone: (614) 759-1601
Email: neinast@att.net



CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing Motion was served, by hand delivery to his office, upon Mr. Jason M. Dolin, Assistant Prosecuting Attorney, Attorney for Defendants, 239 West Main Street — Suite 101, Lancaster, OH, 43130, this 29th day of November, 2010.

 
_______________________
Robert A. Neinast