COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 66928 : MARY LOUISE MARROTTA, ET AL. : : : JOURNAL ENTRY Plaintiffs-Appellants : : and -vs- : : OPINION FINAST SUPERMARKET, ET AL. : : : Defendants-Appellees : : : DATE OF ANNOUNCEMENT OF DECISION: MARCH 2, 1995 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. CV-243649 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiffs-Appellants: For Defendants-Appellees: MARK T. GIBBONS, ESQ. THOMAS W. WRIGHT, ESQ. MARVIN H. SCHIFF, ESQ. DENNIS R. FOGARTY, ESQ. Weisman, Goldberg & Weisman Co. Davis and Young Co. 1600 Midland Building 1700 Midland Building 101 Prospect Avenue W. 101 Prospect Avenue W. Cleveland, Ohio 44115 Cleveland, Ohio 44115-1027 - 2 - O'DONNELL, J.: On January 26, 1990, plaintiff Mary Louise Marrotta slipped and fell while approaching the meat counter at the Finast Supermarket on Great Northern Boulevard in North Olmsted, Ohio. On December 7, 1992, Mary Louise and Vincent Marrotta sued Finast alleging negligence in permitting a hazardous condition to exist on the floor which proximately caused her fall, subsequent injury to both knees, and resultant surgery. After undertaking discovery Finast moved for Summary Judgment denying both negligence and notice of any hazardous condition. Pursuant to Wing v. Anchor Media, Ltd. of Texas (1991), 59 Ohio St.3d 108, plaintiffs' opposition brief included an affidavit of one Kenneth Marthe, a butcher who retired from Heinen's after working for 25 years which affidavit bolstered plaintiffs' claim of actual or constructive notice of a hazardous condition existing in the meat department at Finast. Defendant then moved to Strike the affidavit claiming it was not based on personal knowledge as required by Civ.R. 56(E). On January 18, 1994, the trial court granted both the Motion to Strike Kenneth Marthe's affidavit, and the Motion for Summary Judgment. Plaintiffs appealed and have assigned two errors for our review. In the first assignment of error, plaintiffs contend the trial court erred by granting defendant's Motion to Strike the - 3 - Affidavit of Kenneth Marthe because the affidavit conforms to Civ.R. 56. Civ.R. 56(E) requires that affidavits supporting a Motion for Summary Judgment must be based on personal knowledge, must set forth facts as would be admissible in evidence and must show affirmatively that the affiant is competent to testify to the matters stated therein. Pond v. Carey Corp. (1986), 34 Ohio App.3d 109. See also Penwell v. Taft Broadcasting (1989), 13 Ohio App.3d 382. An affidavit filed in support of a motion for summary judgment is properly considered by a trial court or reviewing court only when it meets the requirements set forth in Civ.R. 56(E) and Evid.R. 701. Tomlinson v. City of Cincinnati (1983), 4 Ohio St.3d 66. The term "personal knowledge" is defined as: "Knowledge of the truth in regard to a particular fact or allegation which is original, and does not depend on information or hearsay. Personal knowledge of an allegation in an answer is personal knowledge of its truth or falsity; and if the allegation is a negative one, this necessarily includes a knowledge of the truth or falsity of the allegation denied." Black's Law Dictionary (6 Ed. 1990) 604. The term "personal knowledge," as used in Civ.R. 56(E) refers to affiant's firsthand knowledge of particular facts and circumstances presented in the case at issue. Here, affiant was not an eyewitness, did not visit or inspect the Finast meat department, did not know the conditions existing in the Finast meat department at the time of plaintiff's fall, and did not express an opinion as to the cause of plaintiff's fall. Instead, Marthe opines that, in his professional experience, it is common - 4 - for water to accumulate on meat counters and meat carts and drip to the floor. Plaintiff avers that a Finast employee took a meat cart out of the meat department before she fell, thereby attempting to establish, by way of Marthe's affidavit, that defendants had notice of water which created a hazardous condition at the time of her fall. The information in the affidavit, however, does not support the inference that there was a hazardous condition on defendant's floor nor that defendant's employees had actual or constructive knowledge of a such a condition. Accordingly, the first assignment of error is overruled. In the second assignment of error, plaintiff contends the trial court erred when it granted defendant's Motion for Summary Judgment because genuine issues of material fact exist concerning Finast's duty to plaintiff, and whether Finast had actual or constructive notice of a hazardous condition. In reviewing a trial court's entry of summary judgment, an appellate court applies the same standard used by the trial court. McConville v. Jackson Comfort Sys., Inc. (1994), 95 Ohio App.3d 297. Pursuant to Civ.R. 56(C), summary judgment is proper if there is no genuine issue as to any material fact, reasonable minds can come to but one conclusion, and the moving party is entitled to judgment as a matter of law. Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327. - 5 - As a store patron, plaintiff became a business invitee, and as such, defendant Finast owed her a duty of ordinary care and to maintain the premises in a reasonably safe condition. Boles v. Montgomery Ward & Co. (1950), 153 Ohio St. 381. The plaintiffs' burden is to establish by a preponderance of evidence that defendant breached its duty, and to demonstrate actual or constructive knowledge of a dangerous condition and failure to remedy that condition. Wright v. K-Mart (Mar. 12, 1987), Cuyahoga App. No. 51709, unreported. To prevail on a summary judgment motion, plaintiff must be able to identify the reason for her fall. Mines v. Russo's Stop-N-Shop (Feb. 23, 1989), Cuyahoga App. No. 55073, unreported. In this case, plaintiff does not know what caused her fall and did not see any water on the floor, although her hands touched the floor when she fell and she felt dampness. (Depo. at 11 and 25). However, when asked whether she knew the source of the alleged dampness, plaintiff responded, "I have no idea." (Depo. at 12). Plaintiff argues that the Marthe affidavit, together with her testimony, presents a factual issue sufficient to defeat Finast's Motion for Summary Judgment. Since the trial court properly excluded the Marthe affidavit for lack of affiant's personal knowledge of conditions in the Finast meat department at time of fall, and since plaintiff cannot identify the reason for her fall, nor establish any evidence to support her position that defendant knew of any hazardous condition, there are no genuine - 6 - issues of material fact and defendant, as moving party, is entitled to judgment as a matter of law. - 7 - It is ordered that appellees recover of appellants their 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. PATTON, C.J., and NAHRA, J., CONCUR. TERRENCE O'DONNELL 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. .