COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60732 : CHESTER PRYOR : : : JOURNAL ENTRY Plaintiff-Appellant : : and -vs- : : OPINION BUILDERS SQUARE : : : Defendant-Appellee : : : DATE OF ANNOUNCEMENT OF DECISION: JULY 30, 1992 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. 159011 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellant: For Defendant-Appellee: ROBERT J. SAWYER, ESQ. STEPHEN E. WALTERS, ESQ. 300 The Superior Building 1100 Illuminating Building 815 Superior Avenue 55 Public Square Cleveland, Ohio 44114-2746 Cleveland, Ohio 44113 - 2 - HARPER, J.: Plaintiff-appellant, Chester Pryor, commenced a negligence action on October 27, 1988 against defendant-appellee, Builders Square, for injuries sustained in appellee's store. The trial court granted appellee's motion for directed verdict on September 26, 1990. It is from this ruling that appellant now appeals; a careful review of the record compels affirmance. On October 27, 1986, appellant and his wife arrived at appellee's store located on Wilson Mills Road in Highland Heights, Ohio, to purchase some paneling. Appellant walked to the center of the store to find a cart used for transporting lumber and other merchandise. He observed an empty cart adjacent to a clearly visible piece of drywall. Appellant moved the cart and the drywall fell, striking his left foot and fracturing his toe. Although appellant's wife and several of appellee's employees were in the area, there were no witnesses to the incident. In his first assignment of error, appellant contends that: "I. THE TRIAL COURT ABUSED ITS DISCRETION AND COMMITTED ERROR IN FAILING TO CONSTRUE THE EVIDENCE MOST STRONGLY IN FAVOR OF PLAINTIFF- APPELLANT IN GRANTING A DIRECTED VERDICT." Appellant asserts that he introduced sufficient evidence for the jury to be presented with the question of whether appellee owed and breached its duty to appellant to keep its premises in a reasonably safe condition and to give warning of a latent or concealed defect of which appellee knew or in the exercise of ordinary care should have known. Appellant thus argues that the trial court erred in granting a directed verdict in favor of appellee. - 3 - A motion for a directed verdict which is based upon the evidence presented is governed by Civ. R. 50(A), which provides as follows: "(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." See, also, O'Day v. Webb (1972), 29 Ohio St. 2d 215, 220. Pursuant to this rule, a trial court must direct a verdict in favor of the defendant where there is no evidence tending to prove an essential element of the plaintiff's cause of action. Rayburn v. J.C. Penney Outlet Store (1982), 3 Ohio App. 3d 463, 465; Eplins v. Express Co. (1977), 55 Ohio App. 2d 59, 61. A plaintiff, in order to establish a negligence claim sufficient to reach a jury, must put forth evidence tending to show the existence of a duty and a breach of that duty which proximately causes the complained of injuries. Jeffers v. Olexo (1989), 43 Ohio St. 3d 140, 142; Strother v. Hutchinson (1981), 67 Ohio St. 2d 282. If factual issues exist as to the conduct of the parties as well as the applicable standard of care, issues in a negligence action should not be withdrawn from the jury. Strother, supra. A business invitee is one who is upon the premises of another by invitation, express or implied, for some purpose that is beneficial to the owner. Sweet v. Clare-Mar Camp. Inc. - 4 - (1987), 38 Ohio App. 3d 6, at paragraph two of the syllabus. Both parties agree that appellant was an invitee when he entered appellee's establishment. Appellee owed the following duty to appellant as an invitee. The owner of the premises must exercise reasonable or ordinary care for the invitee's safety and protection. Included in this duty is the maintenance of the premises in a reasonably safe condition and to warn the invitee of latent or concealed defects of which the possessor has or should have knowledge. Scheibel v. Lipton (1951), 156 Ohio St. 308. However, the owner is not to be held as an insurer against all forms of risk. S.S.Kresge v. Fader (1927), 116 Ohio St. 718. Construing the evidence most strongly in favor of appellant, this court concludes that appellant failed to set forth evidence which would allow reasonable minds to come to but one conclusion that appellee did not breach its duty to appellant thereby proximately causing appellant's injuries. Appellant saw the piece of drywall next to the empty cart. He testified that the drywall fell but could not explain the cause for the fall beyond his observation that the cart apparently braced the drywall. Moreover, in his deposition earlier, he was unsure if the drywall fell because of the cart's movement. The trial court, when presented with this evidence, could reasonably conclude that appellant failed to demonstrate appellee did not exercise reasonable or ordinary care for appellant's safety and protection. Therefore, appellant's first assignment of error is - 5 - overruled as the trial court properly directed a verdict in favor of appellee. Appellant, in his second assignment of error, asserts that: "II. THE TRIAL COURT COMMITTED ERROR AND ABUSED ITS DISCRETION IN VIOLATION OF PLAINTIFF-APPELLANT'S CONSTITUTIONAL RIGHTS OF THE CONSTITUTION OF THE UNITED STATES AND THE CONSTITUTION OF THE STATE OF OHIO." Appellant avers that the United States and Ohio Constitutions guarantee an individual's right to trial by jury. He argues that the rendering of a directed verdict violates these constitutional guarantees. An individual's right to a jury trial is not abridged by the proper granting of a motion for summary judgment. Houk v. Ross (1973), 34 Ohio St. 2d 77, 83-84; Sawchyn v. Buckeye Union Insurance Co. (May 14, 1992), Cuyahoga App. No. 60510, unreported. A trial court's inquiry in ruling on a motion for directed verdict is the same as that used in ruling on a motion for summary judgment. Anderson v. Liberty Lobby, Inc. (1986), 477 U.S. 242, 251-252; Hinkle v. Cornwell Quality Tool Co. (1987), 40 Ohio App. 3d 162, 165. Thus, in the instant case, appellant was not denied any constitutional guarantee by the trial court's proper grant of a directed verdict. Appellant's second assignment of error is overruled. Judgment affirmed. - 6 - It is ordered that appellee recover of appellant its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Common Pleas 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. FRANCIS E. SWEENEY, P.J., and ANN McMANAMON, J., CONCUR. SARA J. HARPER 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 journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .