The opinion
Kline, J.,
dissenting.
{¶ 31} I respectfully dissent. In my view, the trial court and the court of appeals did not err when they considered Susan Kirkland’s affidavit as admissible evidence because W&LE presented sufficient evidence to establish that the affidavit met the Civ.R. 56(E) “personal knowledge” requirement. Kirkland’s description of her job duties allowed an inference that she would be in a position to know if federal funds were used to install the crossbuck signs at the Howe Road crossing.
{¶ 32} I agree with the majority that a court ruling on a motion for summary judgment first must determine what evidence is admissible before it may construe that evidence in the opposing party’s favor. Civ.R. 56(E). I further agree that the “personal knowledge” requirement set forth in Civ.R. 56(E) is the same standard contained in Evid.R. 602 for a lay witness testifying at trial. The trial court has discretion in determining whether evidence is admissible. See, e.g., Miller v. Bike Athletic Co. (1998), 80 Ohio St.3d 607, 616 , 687 N.E.2d 735 .
{¶ 33} 1 McCormick on Evidence (5th Ed.1992) 40, Section 10, addresses the personal knowledge requirement by commenting:
{¶ 34} “A person who has no knowledge of a fact except what another has told him does not, of course, satisfy the requirement of knowledge from observation. When the witness, however, bases his testimony partly upon firsthand *322 knowledge and partly upon the accounts of others, the problem is one which calls for a practical compromise. As a case in point, when a witness speaks of his own age or his kinship with a relative, the courts allow the testimony. * * * In short, when the witness testifies to facts that he knows partly at first hand and partly from reports, the judge should admit or exclude according to the overall reliability of the evidence.” (Footnotes omitted.)
{¶ 35} In Akron-Canton Waste Oil, Inc. v. Safety-Kleen Oil Serv., Inc. (1992), 81 Ohio App.3d 591 , 611 N.E.2d 955 , the court of appeals upheld the trial court’s admission of the testimony of a secretary for the purpose of showing the intention of her corporate employer. The secretary had contact with the managers and the corporate employees and, essentially, ran the office. Her bosses disclosed their intentions to her when they gave her instructions to perform the operations of the company. The court concluded that she had based her testimony on personal knowledge. “Her description of her job duties also allowed an inference that she would be in a position to know the reasons for the various practices of the corporation.” Id. at 597 , 611 N.E.2d 955 .
{¶ 36} The above McCormick quotation and the holding in Akronr-Canton Waste Oil led this court in Dublin City School Dist. Bd. of Edn. v. Franklin Cty. Bd. of Revision (1997), 80 Ohio St.3d 450 , 687 N.E.2d 422 , to interpret the personal knowledge requirement contained in Evid.R. 602 and find that a trial court may admit testimony based partly on firsthand knowledge and partly upon the accounts of others. This court found that a witness who had personal knowledge of a taxpayer’s purchase of twelve parcels of property and a taxpayer’s strategy in assigning an artificially high purchase price to one parcel could testify for the purpose of showing that this allocation did not reflect the true value of the parcel in question. The witness’s job allowed him access to the following information:
{¶ 37} “[H]e attended and participated in corporate management meetings at which the sale and the strategy for allocating the purchase price were discussed. He oversaw ‘property taxes, insurance, financial reporting, corporate, federal and state income tax filings, among other things.’ His duties included administering the purchased properties. The [Board of Tax Appeals] could infer that he collaborated in devising the allocation strategy and could find that he incorporated the allocation decision in his reporting and filing duties.” Id. at 453 , 687 N.E.2d 422 .
{¶ 38} In this case, the majority summarizes Kirkland’s deposition testimony as revealing that “ODOT was responsible for handling federal funds, that [Kirkland] did not work for ODOT, and that her knowledge that federal funds were used to install signs at railroad crossings came from other people.” However, a closer examination of Kirkland’s deposition reveals that she testified *323 as follows: As a manager of the safety programs at the Ohio Rail Development Commission, Kirkland was one of many people responsible for carrying out the Buckeye Crossbuck Program. The Public Utilities Commission of Ohio (“PUCO”) designed the crossbuck program and sent a directive to Kirkland’s employer to implement it. As manager of the safety section, she was responsible for setting up the funds, reviewing the plans, and processing the bills for the crossbuck program. She attended meetings and helped set up the parameters and the procedures of the program. She helped draft an agreement between ODOT and W&LE in which ODOT agreed to supply all new crossbuck signs at passive crossings and to reimburse W&LE from federal funds for its installation costs.
{¶ 39} Kirkland also testified that she helped draft an agreement with the FHWA involving the administration of the crossbuck program. She and her staff had to follow the directives of the FHWA when they carried out the crossbuck program. The agreement provided that the federal funds for the signs and program would flow from the federal government to the state of Ohio by routing the funds from FHWA to ODOT. Kirkland’s staff was involved in the payments made for the standard crossbuck signs at the Howe Road crossing. However, she stated that her knowledge that federal funds were used to install the crossbuck signs at the Howe Road crossing was based on what others told her. While administering the crossbuck program, her employer (the Ohio Rail Development Commission) was within ODOT and was called the Rail Division. 11 The ODOT Rail Division distributed an educational brochure for the Buckeye Cross-buck Program.
{¶ 40} Kirkland’s deposition testimony reveals that her job allowed her access to information regarding the crossbuck program similar to that possessed by the witness in Dublin Bd. of Edn., 80 Ohio St.3d 450 , 687 N.E.2d 422 . As manager of the safety section, she set up the funds, processed the bills, and reviewed the plans of the program. She attended meetings where the parameters and procedures were established, helped draft agreements involving ODOT, W&LE, and FHWA that included funding, and followed the directives of FHWA to carry out the program. Her description of her job duties allowed the trial court to infer that she would be in a position to know whether federal funds paid for the installation of the crossbuck signs at the Howe Road crossing. Therefore, Kirkland had personal knowledge to state in her affidavit that federal funds were used to install crossbuck signs at all passive crossings in Ohio. Consequently, the *324 trial court did not abuse its discretion in considering this affidavit, 12 and the court of appeals did not err in finding that Kirkland had personal knowledge.
Linton & Hirshman, Robert F. Linton, Jr., and Mark W. Ruf; Allen Schulman & Assoc., Inc., and Allen Schulman, Jr., for appellant.
Howes, Daane, Milligan, Kyhos & Erwin, L.L.P., Philip E. Howes and Thomas R. Himmelspach, for appellee.
Squire, Sanders & Dempsey, L.L.P., and Charles F. Clarke, urging affirmance for amicus curiae Association of American Railroads.
Clark, Perdue, Roberts & Scott Co., L.P.A., and Paul 0. Scott; and Dorothy H. Bretnall, urging reversal for amicus curiae Ohio Academy of Trial' Lawyers.
{¶41} I would affirm the court of appeals’ judgment on the “personal knowledge” issue and address the other issues in this appeal.
Moyer, C.J., and Lundberg Stratton, J., concur in the foregoing dissenting opinion.
. The trial court implicitly found that Kirkland had personal knowledge when it overruled Bonacorsi’s motion to strike the affidavit. However, the trial court never found that W&LE had established that federal funds were used to install the crossbuck sign at the Howe Road crossing. Instead, it denied the partial motion for summary judgment on another ground. Thus, the court of appeals had authority to review the “personal knowledge” issue but did not have the authority to find that federal funds were used to install the sign in question because it did not have anything from the trial court to review. See Murphy v. Reynoldsburg (1992), 65 Ohio St.3d 356, 360 , 604 N.E.2d 138 ; see, also, Fulmer v. Insura Prop. & Cas. Co. (2002), 94 Ohio St.3d 85, 99-100 , 760 N.E.2d 392 (Cook, J., dissenting); Bowen v. Kilr-Kare, Inc. (1992), 63 Ohio St.3d 84, 89 , 585 N.E.2d 384 .
. At the time of her deposition, Kirkland and her attorney stated that her employer is affiliated with ODOT but is legally not a division of ODOT. The Ohio legislature “created the Ohio [R]ail [D]evelopment [C]ommission, as an independent agency of the state within [ODOT].” R.C. 4981.02(A). The director of ODOT is an ex officio member of the commission. Id.