COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59157 : ANDREW E. BARNA : : JOURNAL ENTRY Plaintiff-Appellant : : and -vs- : : OPINION : RANDALL PARK ASSOCIATES ET AL. : : Defendant-Appellee : : DATE OF ANNOUNCEMENT NOVEMBER 21, 1991 OF DECISION: CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. 150994 JUDGMENT: Reversed and Remanded. DATE OF JOURNALIZATION: __________________________ APPEARANCES: FOR PLAINTIFF-APPELLANT: FOR DEFENDANT-APPELLEE: JOHN C. MEROS JUDSON J. HAWKINS SCHULMAN & SCHULMAN KUEPPER, WALKER, HAWK Suite 600, Standard Building AND CHULICK Cleveland, Ohio 44113-1727 618 Huntington Building Cleveland, Ohio 44115 -2- PATRICIA A. BLACKMON, J.: Andrew E. Barna, plaintiff-appellant, timely appeals trial court's decision to grant a directed verdict in favor of the defendants-appellees, Randall Park Associates d.b.a. Randall Park Mall, et al. As a result of our conclusion that appellant's arguments are meritorious, we reverse the decision of the trial court and remand the case for a new trial consistent with this opinion. The record contains the following facts: On April 17, 1987, appellant was a business invitee at the appellees' mall. He was also employed as a furniture salesman by the J.C. Penny Company, a store located in the appellees' mall. On the date in question, the appellant arrived for work at 1:30 p.m. and at approximately 2:30 p.m. he took his coffee break. Appellant left the store and entered the mall. While he was walking by a large water fountain display, he slipped and fell. Because of the fall, appellant suffered a torn rotator cuff shoulder injury. During the jury trial, appellant testified and he offered the testimony of three witnesses, Robert Bertram, Bryant McPhearson, and Joe Crandall, but only Robert Bertram was allowed to testify. Appellant testified that he suddenly began to slide forward while falling backwards close to the water fountain display. He looked down and saw himself in the midst of a puddle of liquid that was rippling around his shoes. Appellant's testimony further revealed that the liquid was cool, odorless, -3- non-sticky, and did not stain his suit. Thus, appellant concluded that the substance was water from the fountain. Appellant also remarked that while he was on the floor he observed that the puddle size was such that his feet were in the puddle at the same time that his left hand was in the puddle. Robert Bertram then testified that he was an employee of the J.C. Penny Company in Randall Park Mall, as an electronics salesman. On direct examination, Bertram testified that while he was on his lunch hour he observed water on both sides of the fountain. On his way to lunch, he observed the water puddle on the J.C. Penny's side of the fountain and on his return from lunch he observed a puddle on the Gap Store's side of the fountain. Bertram testified during his direct examination that he had mentioned the puddles to his co-workers. In addition, Bertram testified on direct examination that his observations took place on the day of the appellant's fall. However, when Bertram was cross-examined, he testified that he was unsure whether the fountain over-sprayed on the day of the appellant's injury. He also testified, in response to appellees' counsel's cross-examination, that his observations may have occurred after the appellant's fall. Nevertheless, he did testify on cross-examination that he was aware that the problem existed for several days. On redirect examination, Bertram stated that his recollection was that he told his co-workers he saw the water puddle on both sides of the fountain on the day the appellant fell. -4- Bryant McPhearson was also called as a witness although his testimony was objected to early in his direct examination. Counsel for the appellees objected on relevancy grounds to McPhearson's testimony that he observed water on the floor on the day before the appellant fell. The trial court sustained the objection. At this point in the trial, counsel for the appellant proffered the remainder of McPhearson's testimony. The proffer contained three basic statements regarding the observations of McPhearson. The first statement was that he observed water on the floor four consecutive days./1\ The second statement was that the water was observed by McPhearson in the presence of one Joe Crandall. The third statement was that McPhearson discussed his observations with some J.C. Penny employees at the same time or in close proximity to the appellant's fall. Counsel for the appellees entered his objection and an observation about the proffer. His observation was that if McPhearson had testified consistently with his deposition; he would have testified that the water was observed on the other side of the fountain from where the appellant fell. At the close of the appellant's case, the trial court granted a directed verdict in favor of the defendants-appellees concluding that "there was no pre-accident factual evidence to /1\ Appellees' counsel, during oral argument, suggested that the transcript contained a mistake and the word "four" should have been "for". The difference is inconsequential to our analysis. -5- establish when and how the nuisance hazard came into being and no factual evidence upon which to establish constructive notice of the nuisance to the landlord." In support of his appeal, the appellant assigns two errors which this court will address together. They are: I. THE TRIAL COURT ERRED IN GRANTING DEFENDANTS' MOTION IN LIMINE, WHICH RESULTED IN EXCLUDING PLAINTIFF'S EVIDENCE CONCERNING ACTUAL AND CONSTRUCTIVE NOTICE TO DEFENDANT OF WATER ON DEFENDANT'S FLOOR. II. THE TRIAL COURT ERRED IN GRANTING A DIRECTED VERDICT FOR DEFENDANTS. The Ohio Supreme Court case that is dispositive of the issues in this case is Johnson v. Wagner Provision Co. (1943), 141 Ohio St. 584. In Johnson, the Ohio Supreme Court held: In order to entitle customer to recover for injuries sustained in fall in store as result of stepping on substance on floor of store, customer must show that storekeeper through its officers or employees was responsible for the hazard, or that at least one of such persons had actual knowledge of the hazard and neglected to give adequate notice of its presence or remove it promptly or that such hazard had existed for sufficient length of time reasonably to justify inference that failure to warn against it or remove it was attributable to want of ordinary care. (Emphasis added.) The appellant, in this case, had the burden of proving the appellees' responsibility for the hazard and that the appellees should have been on constructive notice of the hazard. The facts in this case were such that the appellant could only meet his burden of proof utilizing circumstantial evidence to create reasonable and logical inferences on the proof of constructive -6- notice. There was direct evidence of the appellees' responsibility for the hazard through the testimony of Paul Bromall, Maintenance Supervisor for Randall Park Mall. He testified that the responsibility for maintenance of the fountain was the appellees. As the basis for its decision to grant a directed verdict, the trial court stated in the judgment "there being no pre- accident factual evidence to establish when and how the nuisance hazard came into being and no factual evidence upon which to establish constructive notice of the nuisance to the landlord existing case law mandates a directed verdict for the defendant on the question of liability. Initially, it must be pointed out that as a matter of law the appellant was not required to establish through pre-accident factual evidence when and how the nuisance hazard came into being. Johnson, supra teaches that the first element that has to be proven by a business invitee, in a foreign substance slip and fall case, is that the storekeeper through its officers or employees was responsible for the hazard. There is a substantial difference between proof of responsibility for the hazard and proof of when and how the hazard came into being. The latter not being an element of a prima facie case of a foreign substance slip and fall where the injured party is a business invitee. The appellant proved by direct evidence, through the testimony of Paul Bromall, that the appellees were responsible for the maintenance of all eleven water fountains in the mall. -7- Clearly, the trial court could not grant a directed verdict on the first prima facie element of proof of the storekeeper's responsibility for the hazard. Ohio Civil Rule 50(A)(4) states relative to a directed verdict the following: (4) When granted on the evidence. When a motion for a directed verdict has been properly made, and the trial court, after construing the evidence most strongly in favor of the party against whom the motion is directed, finds that upon any determinative issue reasonable minds could come to but one conclusion upon the evidence submitted and that conclusion is adverse to such party, the court shall sustain the motion and direct a verdict for the moving party as to that issue. (Emphasis original.) The application of this standard, to the instant case, requires that the motion for directed verdict would have to be overruled on the first prima facie element of proof of the storekeeper's responsibility for the hazard. The evidence was direct and uncontroverted that the appellees were responsible for the maintenance of all eleven water fountain displays in Randall Park Mall. The second and last prima facie element that the appellant had to prove was either actual or constructive notice to the appellees of the hazard. It is obvious from the facts and record in the case that the appellant proceeded on a constructive notice theory. This remaining element of a prima facie case of a foreign substance slip and fall where a business invitee is the injured party is stated in the holding of Johnson. The customer must show that such hazard had existed for sufficient length of -8- time reasonably to justify inference that failure to warn against it or remove it was attributable to want of ordinary care. Id. The appellant attempted to prove the second element utilizing circumstantial evidence. The appellant testified that, close to the water fountain display, he suddenly began to slide forward while falling backwards. He looked down and saw himself in the midst of a puddle of liquid that was rippling around his shoes. The appellant's description of the liquid was that it was cool, odorless, non sticky, and did not leave a stain on his suit. In addition, the puddle size was such that when he landed his feet and left hand were in the puddle at the same time. It is a very logical, reasonable, and material inference that should be made by the trier of fact that the substance was water from the fountain display; the maintenance of which was the appellees' responsibility. In addition, it is a logical and reasonable inference from appellant's testimony that the puddle was large enough to have been there for a sufficient period of time for the appellees to be on constructive notice of its existence. At the least, construing this evidence in a light most favorable to the appellant, reasonable minds could reach different conclusions not necessarily adverse to the appellant. The testimony of Robert Bertram, although inconsistent, also should have been left for the jury to evaluate. Reasonable minds could reach different conclusions, not necessarily adverse to the appellant, on whether Bertram observed the water accumulation on the day of the appellant's fall. This testimony is very relevant -9- to the proof of constructive notice. Furthermore, with all due deference to a good job of cross-examination by counsel for the appellees, Bertram may have been confused since the questions on cross-examination were phrased in terms of his observations of the fountain "over-spraying" and not water accumulation on the floor near the fountain. Bertram's credibility, or lack thereof, should have been left for the jury to decide. It was improper for the trial court to exclude the testimony of Bryant McPhearson and Joe Crandall pursuant to the motion in limine. The appellant had obviously chosen to proceed on a constructive notice theory as he was permitted to do under Johnson. However, the direct evidence that he planned to utilize to create the inferences necessary to prove constructive notice was excluded improperly by the trial court. It is the opinion of this court that the observation of water accumulation around the fountain display for a number of consecutive days, close to, or at the same time of the appellant's fall, is very relevant to whether the hazard had existed for a sufficient length of time reasonably to justify inference that failure to warn against it or remove it was attributable to want of ordinary care. Johnson, supra. Furthermore, it would seem axiomatic that the greater the number of consecutive days that the water was standing near the fountain display, close to or on the same day of the appellant's fall, the greater the proof by circumstantial evidence of constructive notice of the hazard. The same would hold true for -10- the testimony of Joe Crandall, whose testimony would presumably corroborate that of McPhearson. Therefore, we must conclude that the trial court erred in the exclusion of McPhearson and Crandall's testimony. In a foreign substance slip and fall case where the injured party is a business invitee, the injured party must prove that the storekeeper was responsible for the hazard and had actual or constructive notice of it. When the injured person proceeds on a constructive notice theory, the trial court should not exclude relevant circumstantial evidence observed reasonably close to or on the same day of the slip and fall, from which a reasonable and logical inference may be drawn that defendant was on constructive notice of the hazard. This case is reversed and remanded for a new trial consistent with this opinion. -11- This cause is reversed and remanded. It is, therefore, considered that said appellant recover of said appellee his costs herein. It is ordered that a special mandate be sent to said court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions. NAHRA, P.J., and PATTON, J., CONCUR. PATRICIA A. BLACKMON JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journaliza- tion, at which time it will become the judgment and order of the court and time period for review will begin to run. .