COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67752 BRITAIN KILBURN : : Plaintiff-appellant : : JOURNAL ENTRY -vs- : AND : OPINION ACME-CLICK : : Defendant-appellee : : DATE OF ANNOUNCEMENT : JUNE 8, 1995 OF DECISION : CHARACTER OF PROCEEDING : Civil appeal from Court of Common Pleas : Case No. CV-261085 JUDGMENT : AFFIRMED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellant: For defendant-appellee: WILLIAM J. NOVAK, ESQ. CHRISTINE SANTONI, ESQ. PETER C. TUCKER, ESQ. Reminger & Reminger 270 Skylight Office Tower 113 St. Clair Avenue Bldg. 1660 West 2nd Street Cleveland, OH 44114 Cleveland, OH 44113-1498 - 2 - PATTON, C.J. Plaintiff-appellant, Britain Kilburn ("appellant") appeals the trial court's ruling granting defendant-appellee, Acme-Click's ("appellee") motion for summary judgment. On May 3, 1993, appellant slipped and fell on the floor in the greeting card section of appellee's store, injuring her knee. It is undisputed that appellant slipped on a piece of candle that had fallen from the display onto the floor. Appellant filed this action for damages alleging appellee had negligently maintained its store floor. Appellee filed a motion for summary judgment which was granted. Appellant's sole assignment of error states: THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN GRANTING DEFENDANT-APPELLEE'S MOTION FOR SUMMARY JUDGMENT BY FAILING TO CONSTRUE THE EVIDENCE IN FAVOR OF THE NON-MOVING PARTY AND FAILING TO RECOGNIZE THAT THERE WERE MATERIAL ISSUES OF FACT ON WHICH REASONABLE MINDS COULD DIFFER. Appellant maintains that the trial court erred and abused its discretion when it granted appellee's motion for summary judgment because material issues of fact existed. Specifically, appellant asserts that the trial court erred in granting appellee's motion for summary judgment because appellee was under a duty to inspect its floors and failed to do so. The law in the state of Ohio is clear that in order for a plaintiff to recover damages from a slip and fall accident as a business invitee, the following must be established: - 3 - "1. That the defendant through its officers or employees was responsible for the hazard complained of; or 2. 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 3. That such danger had existed for a sufficient length of time reasonably to justify the inference that the failure to warn against it or remove it was attributable to a want of ordinary care." Johnson v. Wagner Provision Co. (1943), 141 Ohio St. 548, 589. Moreover, the case of Anaple v. The Standard Oil Company (1955), 162 Ohio St. 537, paragraph one of the syllabus states: "1. That the nature, size, extent and location of such grease spot involved a potential hazard to customers, sufficient to justify a reasonable conclusion that the duty of ordinary care, which the operator or such service station owes to his customers, would require such operator to prevent or remove such a grease spot or to warn his customers about it, and 2. (a) That such sufficient potential hazard was created by some negligent act of the operator of the service station or his employees, or (b) That such operator or his employees had, or should in the exercise of ordinary care have had, notice of that potential hazard for a sufficient time to enable them in the exercise of ordinary care to remove it or to warn customers about it." Id. This court has consistently followed Anaple and held that evidence of how long the hazard existed is mandatory in establishing a duty to exercise ordinary care. Powers v. First - 4 - National Supermarkets (June 12, 1991), Cuyahoga App. No. 61005, unreported. In the present case, appellant fell on a piece of candle that had fallen from a display. In her deposition, she testified that she did not know how long the candle was on the floor. Furthermore, Marqueita Myers, an employee of American Greetings, testified at deposition that she was assigned to appellee's store and was working in the card aisle at the time appellant fell. Myers stated that she did not see the candle in the aisle. It is axiomatic that a motion for summary judgment shall only be granted when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Summary judgment shall not be granted unless it appears from the evidence that reasonable minds could come to but one conclusion and that conclusion is adverse to the party against whom the motion is made. In reviewing a motion for summary judgment, the inferences to be drawn from the underlying facts must be viewed in the light most favorable to the party opposing the motion. Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317. Moreover, upon motion for summary judgment pursuant to Civ. R. 56, the burden of establishing that material facts are not in dispute, and that no genuine issue of fact exists, is on the party moving for summary judgment. Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St. 2d 64, 66. However, in that Civ. R. 56(E) requires that a party set forth specific facts showing that there - 5 - is a genuine issue for trial, such party must so perform if he is to avoid summary judgment. Van Fossen v. Babcock & Wilcox Co. (1988), 36 Ohio St.3d 100, at paragraph seven of the syllabus. Viewing the underlying facts in a light most favorable to the appellant we conclude no genuine issue of material fact exists. The appellant testified that she did not know how long the candle was in the aisle before she fell. Furthermore, an employee for appellee testified that she was in the aisle where appellant fell for several minutes and did not see the candle. Applying Anaple, supra, and Johnson, supra, to the present case, we hold that appellant failed to produce any evidence that appellee failed to use ordinary care in maintaining its premises and therefore summary judgment was properly granted. See Huff v. First National Supermarkets, Inc. (June 9, 1994), Cuyahoga App. No. 65118, unreported. 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 Court of Common Pleas 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. LEO M. SPELLACY, J. DIANE KARPINSKI, J., CONCUR CHIEF JUSTICE JOHN T. PATTON N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, .