Perez-Herrera v. Now Clinic

[Cite as Perez-Herrera v. Now Clinic, 2023-Ohio-173.] STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF WAYNE ) ANTONIO BONAFACIO PEREZ- C.A. No. 21AP0018 HERRERA Appellant APPEAL FROM JUDGMENT v. ENTERED IN THE COURT OF COMMON PLEAS NOW CLINIC, et al. COUNTY OF WAYNE, OHIO CASE No. 2019-CVC-A 000107 Appellees DECISION AND JOURNAL ENTRY Dated: January 23, 2023 TEODOSIO, Presiding Judge. {¶1} Appellant, Antonio Bonafacio Perez-Herrera, appeals from a judgment of the Wayne County Court of Common Pleas that granted summary judgment to Appellees, Walmart Inc. and Wal-Mart Super Stores, East, L.P. (collectively “Walmart”), on his negligence claim, concluding that Walmart owed no legal duty to Mr. Perez-Herrera. This Court reverses and remands. I. {¶2} This appeal stems from a workplace injury that Mr. Perez-Herrera alleges resulted in serious and permanent physical injuries because of the negligence of others in treating and/or failing to properly treat his initial injury. Although this case involves complicated facts and multiple defendants, the only defendant at issue in this appeal is Walmart, as the owner and operator of a pharmacy in New Philadelphia, Ohio. This Court will focus on the evidence relevant to the sole issue on appeal: whether Walmart owed a duty to Mr. Perez-Herrera. 2 {¶3} Moreover, because this appeal involves a summary judgment granted in favor of defendant Walmart, this Court must construe the evidence in the record in favor of the nonmoving party, Mr. Perez-Herrera. Welco Industries, Inc. v. Applied Cos., 67 Ohio St.3d 344, 346 (1993). “Even the inferences to be drawn from the underlying facts contained in the evidentiary materials, such as affidavits and depositions, must be construed in a light most favorable to the party opposing the motion.” Hannah v. Dayton Power & Light Co., 82 Ohio St.3d 482, 485 (1998), citing Turner v. Turner, 67 Ohio St.3d 337, 341 (1993). {¶4} Mr. Perez-Herrera is an immigrant from Guatemala who is not fluent in English. On Friday, December 22, 2017, he smashed the index finger on his left hand while on a break from his job at Ohio Farms Packing Company, a slaughterhouse in Creston, Ohio. Because he and several other employees were transported to and from work by his employer, his employer also transported him to Now Clinic (“the clinic”), an urgent care clinic in Wooster, Ohio. {¶5} A physician’s assistant treated Mr. Perez-Herrera by examining his finger and stitching his severed fingernail down to the nail bed. The clinic also x-rayed his finger to determine whether it was broken, but a radiologist did not read his x-ray until after he had left the clinic. The physician’s assistant looked at the x-ray, however, and concluded that the finger was not broken. The clinic released Mr. Perez-Herrera without a prescription for medication or instructions that he would need to be treated with medication. He was transported by his employer back to Ohio Farms, where he waited for his shift to end so he and other employees could be transported home. {¶6} …

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