COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68975 BETTY L. BEHNKE, ET AL. : : : PLAINTIFFS-APPELLANTS : JOURNAL ENTRY : v. : AND : : OPINION B & C TAVERN, DBA : BUCCI'S RESTAURANT : : DEFENDANT-APPELLEE : DATE OF ANNOUNCEMENT OF DECISION: DECEMBER 14, 1995 CHARACTER OF PROCEEDING: Civil appeal from Court of Common Pleas, Case No. CV-269846. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiffs-appellants: William K. McCarter, Esq. 9720 Johnnycake Ridge Road Concord, Ohio 44060 For Defendant-appellee: Jan L. Roller, Esq. Dennis Fogarty, Esq. 101 Prospect Avenue, West 1700 Midland Building Cleveland, Ohio 44115 - 2 - SWEENEY, JAMES D., J.: Plaintiffs-appellants Betty L. Behnke and Ted Behnke, husband and wife, appeal from the granting of summary judgment in favor of defendant-appellee B & C Tavern, dba Bucci's Restaurant, in this slip and fall negligence case. For the reasons adduced below, we affirm. A review of the record on appeal indicates that on Sunday, November 29, 1992, at approximately 4:00 p.m., plaintiff Betty Behnke arrived at Bucci's Restaurant in Berea, Ohio, to attend a bridal shower for her niece in a private dining room within the restaurant. In reaching the private room, Mrs. Behnke had to walk across a vinyl-floored walkway before walking up several steps to reach the room. Portions of this walkway were covered with non- skid rubber-backed mats. A rug was also in place at the foot of the steps. The placement of this rug left approximately one-and- one-half feet of vinyl floor exposed between the edge of the rug and the first step. Prior to Mrs. Behnke's fall, she had an unobstructed view of the area and did not notice anything out of the ordinary. As Mrs. Behnke reached the area of the steps, she raised one foot to place it on the first step. As she did so, her other foot slipped out from under her and she fell to the floor. While on the floor, she felt with her hand the spot where she had fallen and she believed her hand to feel "greasy" or "damp", but she could not identify the substance. - 3 - Patricia Pesarchic, the manager of the restaurant on duty at the time, heard the commotion and came to Mrs. Behnke's assistance, but did not notice any foreign substance on the floor where Mrs. Behnke had fallen. See deposition of Patricia Pesarchic, at 7 and 17. Likewise, Ms. Geneen Crocco, a co-owner of the restaurant who had been in the kitchen at the time of the fall, inspected the area of the fall shortly after the incident and did not observe "any moisture or anything like that on the floor." See deposition of Geneen Crocco, at 22. The record also reflects that the restaurant opens to the public at 3:00 p.m. on Sundays and the floor in question is washed each morning at approximately 7:00 a.m. with a bleach-water solution. See deposition of the cleaning lady, Aurora Pereira, at 8 and 15. A coat of Mop-n-Glow floor cleaner/polish is applied to the floor once a year after the winter is over. Id. at 9. The restaurant filed its motion for summary judgment on February 21, 1995, supported by excerpts from depositions filed in the case. On March 13, 1995, plaintiffs filed their brief in opposition to summary judgment, supported by excerpts from depositions filed in the case. Neither the motion or the brief in opposition contained any affidavits. On March 16, 1995, the restaurant filed a reply brief in support of its motion for summary judgment. On April 11, 1995, the court, without opinion and by status form entry, granted summary judgment in favor of the - 4 - restaurant. This timely appeal followed presenting the following sole assignment of error. I THE TRIAL COURT COMMITTED ERROR IN GRANTING APPELLEE'S MOTION FOR SUMMARY JUDGMENT. In addressing this assignment we note the following language as contained in Wilkerson v. Eaton Corp. (March 10, 1994), Cuyahoga App. No. 65812, unreported, 1994 Ohio App. LEXIS 1043: Civ.R. 56(C) specifically provides that before summary judgment may be granted, the court must determine that (1) no genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to only one conclusion, and viewing such evidence most strongly in favor of the non- movant, the conclusion is adverse to that party. Osborne v. Lyles (1992), 63 Ohio St.3d 326, 587 N.E.2d 825. A motion for summary judgment forces the non-moving party to produce evidence on issues for which that party bears the burden of production at trial. Wing v. Anchor Media, Ltd. of Texas (1991), 59 Ohio St.3d 108, 570 N.E.2d 1095 (syllabus). The evidentiary materials must be timely filed. Civ.R. 56(C). The non-movant must also present specific facts and may not rely merely upon the pleadings or upon unsupported allegations. Shaw v. J. Pollack & Co. (1992), 82 Ohio App.3d 656, 612 N.E.2d 1295. Also see Celotex v. Catrett (1986), 477 U.S. 317, 322-323, 106 S.Ct. 2548, 2552-2553, 91 L.Ed.2d 265, 273-274. Additionally, [T]he dispute must be "material" in that the facts involved have the potential to affect the outcome of the lawsuit. Anderson v. Liberty - 5 - Lobby, Inc. (1986), 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202, 211. The issue to be tried must also be "genuine," allowing reasonable minds to return a verdict for the non-moving party. Id. 477 U.S. at 248- 252, 106 S.Ct. at 2510-2512, 91 L.Ed.2d at 211- 214. Manofsky v. Goodyear Tire & Rubber Co. (Summit, 1990), 69 Ohio App.3d 663, 666. In this premises liability case, it is not contested that Mrs. Behnke was a business invitee. As a business invitee, the defendant had a duty to exercise ordinary care for her safety. Light v. Ohio Univ. (1986), 28 Ohio St.3d 66, 68. However, the defendant was not an insurer of her safety. Holdshoe v. Whinery (1968), 14 Ohio St.2d 134. Pertinent to the resolution of this appeal is the following language from this court in another premises liability case involving a summary judgment in favor of the defendants: In a foreign substance slip and fall case, the plaintiff must be able to prove at least one of the following: (1) that the defendant or his employee placed a foreign substance on the floor, (2) that defendant knew of the presence of the foreign substance on the floor and failed to remove it or, (3) that the substance had been on the floor long enough that the defendant should have known about it and removed it. Anaple v. Standard Oil Co. (1955), 162 Ohio St. 537, 124 N.E.2d 128; Greene v. Fisher Foods Inc. (Nov. 22, 1989), Cuyahoga App. No. 55886, unreported. With respect to the issue of constructive notice, a jury may not speculate; there must be some identification of the subject as having been on the floor prior to the fall for a sufficient period of time. Cohen v. Kroger Co. (1982), 8 Ohio App.3d 21, 455 N.E.2d 1013. - 6 - Further, it is incumbent upon the plaintiff to identify or explain the reason for the fall. Cleveland Athletic Association Co. v. Bending (1934), 129 Ohio St. 152, 149 N.E. 6; Stamper v. Middletown Hosp. Assn. (1989), 65 Ohio App.3d 65, 582 N.E.2d 1040. Where the plaintiff, either personally or by other witnesses, cannot identify what caused the fall, a finding of negligence on the part of the defendant is precluded. Id.; Mines v. Russo's Stop and Shop (Feb. 23, 1989), Cuyahoga App. No. 55073, unreported. Krasinski v. Rite Aid Corp. (October 6, 1994), Cuyahoga App. No. 66266, unreported, 1994 Ohio App. LEXIS 4580. In this case, plaintiff has sufficiently identified the alleged reason for her fall as being a greasy, or otherwise wet, substance on the floor to create a genuine issue of material fact under Cleveland Athletic Assn., supra. However, summary judgment was appropriate under Anaple as plaintiff has failed to satisfy any of the three elements therein, to-wit, defendant placing the substance on the floor or defendant's knowledge or constructive knowledge of the foreign substance. Lacking such evidence, the trial court was bound by Anaple and Fisher Foods, supra, to award summary judgment in favor of the defendant-appellee. Assignment overruled. Judgment affirmed. - 7 - It is ordered that appellee recover of appellants 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. JOHN T. PATTON, C.J., and DAVID T. MATIA, J., CONCUR. JAMES D. SWEENEY 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 .