COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68834 JUANITA SKUBOVIOUS : : Plaintiff-Appellant : : JOURNAL ENTRY -vs- : AND : OPINION MARY CLOUGH, ET AL. : : Defendants-Appellees : : DATE OF ANNOUNCEMENT OF DECISION: JANUARY 11, 1996 CHARACTER OF PROCEEDING: CIVIL APPEAL FROM THE COMMON PLEAS COURT CASE NO. CV-265501 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: MICHAELE TYNER (#0007690) 7002 Worley Avenue - Up Cleveland, Ohio 44105 For Defendants-Appellees: THOMAS P. COFFEE (#0039103) 323 Lakeside Avenue West - Suite 410 Cleveland, Ohio 44113 Also listed: WILLIAM H. RIDER (#Z00007929) 113 St. Clair Bldg., Suite 525 Cleveland, Ohio 44114 - 2 - 2 SPELLACY, C.J.: Plaintiff-appellant Juanita Skubovious ("appellant") appeals from the entry of summary judgment in favor of defendant-appellee Drug Mart, Inc. in a negligence action. Appellant assigns the following errors for review: I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN GRANTING SUMMARY JUDGMENT FOR APPELLEE. II. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN THAT APPELLEE IS NOT ENTITLED TO SUMMARY JUDGMENT AS A MATTER OF LAW. Finding neither of the assignments of error to have merit, the judgment of the trial court is affirmed. I. On October 3, 1993, appellant was injured as she was entering the Drug Mart in Parma Heights. An automobile driven by Mary Clough had been parked in front of the Drug Mart, perpendicular to the entrance. As Clough started the car, it went forward instead of in reverse. The automobile went over the raised curb, across the sidewalk and into the front of the store. Clough's car struck appellant from behind as appellant stood in the open doorway. Appellant was thrown approximately ten feet until she impacted with a wall. Appellant brought a suit against Clough and Drug Mart. Appellant averred Drug Mart was careless and negligent for failing to adequately protect its business guests as its layout was a dangerous condition. - 3 - 3 Drug Mart filed a motion for summary judgment arguing it was not negligent under both premises liability and foreseeability. Drug Mart argued it owed appellant a duty of ordinary care requiring it to warn her of latent or concealed defects. Also, there was no evidence of any such prior accidents at this Drug Mart which would have led Drug Mart to foresee the occurrence and guard against the possibility. Appellant answered and argued there were disputes regarding material questions of fact as to whether Drug Mart failed to provide adequate protection to its business invitees. Appellant appended a report from a registered architect which stated that the use of steel bollards and precast concrete parking curbs would provide a much greater degree of safety at Drug Mart's entry doors. The trial court granted Drug Mart's motion for summary judgment and stated there was no just reason for delay. The claim against Clough remains below. II. In her first assignment of error, appellant contends the trial court erred in granting summary judgment in favor of Drug Mart. Appellant argues that whether or not Drug Mart breached its duty of care to her was a question of fact to be resolved by the finder of facts. Appellant asserts that whether the raised curb provided adequate protection or if more was required is a disputed fact. - 4 - 4 This case was disposed of by summary judgment. Civ.R. 56(C) provides that summary judgment is proper if the trial court determines 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 but one con- clusion, and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party. Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327. Sum- mary judgment is a procedural device designed to terminate litiga- tion and to avoid a formal trial where there is nothing to try. Norris v. Ohio Std. Oil Co. (1982), 70 Ohio St.2d 1. Summary judgment is not appropriate where the facts are subject to reason- able dispute when viewed in a light favorable to the nonmoving party. Mers v. Dispatch Printing Co. (1985), 19 Ohio St.3d 100, 104. It should be awarded with caution only after doubts are resolved and evidence construed in favor of the nonmoving party. Murphy v. Reynoldsburg (1992), 65 Ohio St.3d 356. The nonmoving party must produce evidence on any issue for which that party bears the burden of production at trial. Wing v. Anchor Media Ltd. of Texas (1991), 59 Ohio St.3d 108, paragraph three of the syllabus. In order to defeat a motion for summary judgment in a negli- gence action, the plaintiff must identify a duty owed her by the defendant. Keister v. Park Centre Lanes (1981), 3 Ohio App.3d 19, This evidence, construed most strongly in the plaintiff's favor, - 5 - 5 must be sufficient to allow reasonable minds to infer that a specific duty was breached; that the breach was the proximate cause of plaintiff's injury; and that the plaintiff was injured. Id. Whether a defendant owes a duty to a plaintiff depends on the relationship between them. Commerce & Industry Ins. Co. v. Toledo (1989), 45 Ohio St.3d 96, 98. A business invitee is one who comes upon the premises of another, by invitation, express or implied, for some purpose which is beneficial to the owner. Scheibel v. Lipton (1951), 156 Ohio St. 308. A merchant owes patrons and prospective customers upon the premises of a shopping center a duty to exercise ordinary care for their safety which is the degree of care exercised by a reasonable and prudent person. Parsons v. Lawson Co. (1989), 57 Ohio App.3d 49. The merchant or owner of premises must maintain the premises in a reasonably safe condition and warn the invitee of latent or concealed defects of which the merchant or owner has or should have knowledge. Kubiszak v. Rini's Supermarket (1991), 77 Ohio App.3d 679. The duty of care extends to providing a reasonably safe ingress or egress. Tyrrell v. Investment Assoc., Inc. (1984), 16 Ohio App.3d 47. However, a merchant is not an insurer of the customer's safety. Paschal v. Rite Aid Pharmacy, Inc. (1985), 18 Ohio St.3d 203. Appellant argues that Drug Mart did not provide adequate protection to its customers because only a raised curb formed a barrier between the parking lot and the sidewalk in front of the store. The use of either steel bollards or precast concrete - 6 - 6 parking curbs or both would provide a greater degree of safety to Drug Mart's business invitees and would have prevented this accident. There is nothing in the record showing any previous accident on the premises of Drug Mart like what occurred in the instant case. Although the use of the safety devices mentioned by appellant would have prevented this accident, Drug Mart is not required to guard against injury which may result from any possible incident. Drug Mart did not violate its duty of ordinary care owed to appellant. Appellant's first assignment of error is not well taken. III. In her second assignment of error, appellant argues the issue of foreseeability is a matter for jury determination. Appellant asserts Drug Mart breached its duty to its business invitees by exposing them to an unreasonable risk of harm and should have foreseen that an automobile could be driven over the curb, across the sidewalk, and strike a patron. The test for foreseeability is whether a reasonably prudent person would have antici- pated that an injury was likely to result from the performance or nonperformance of an act. Menifee v. Ohio Welding Products, Inc. (1984), 15 Ohio St.3d 75, 77. There is nothing in the record showing anything like the instant case ever occurred on the premises of Drug Mart. An automobile being driven over a curb, across a sidewalk and into a building is an unusual incident. A reasonably prudent person would - 7 - 7 not have anticipated such an injury would result from normal, everyday activities. The issue of foreseeability was not one requiring resolution by a jury in the instant case. The trial court did not err in granting Drug Mart's motion for summary judgment. Appellant's second assignment of error is overruled. Judgment affirmed. - 8 - 8 It is ordered that appellees recover of appellant 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. JAMES D. SWEENEY, J. and JOHN T. PATTON, J., CONCUR. LEO M. SPELLACY CHIEF JUSTICE 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 .