COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69362 : JAMES CORRADO, ET AL. : : : JOURNAL ENTRY Plaintiffs-Appellants : : and v. : : OPINION FIRST NATIONAL SUPERMARKETS, ET AL. : : : Defendants-Appellees : : : DATE OF ANNOUNCEMENT OF DECISION: MAY 2, 1996 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. CV-268409 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiffs-Appellants: For Defendants-Appellees: DAVID A. CORRADO, ESQ. JAN L. ROLLER, ESQ. Atrium Office Plaza #535 DENNIS R. FOGARTY, ESQ. 668 Euclid Avenue Davis & Young Cleveland OH 44114 101 Prospect Avenue, West 1700 Midland Building Cleveland OH 44115 - 2 - KARPINSKI, J.: Plaintiffs-appellants James and Mary Corrado appeal from an order of the trial court granting summary judgment in favor of defendants-appellees First National Supermarkets and Finast Super Market (collectively, "Finast") in this personal injury slip and fall action. The Corrados filed a three-count complaint against Finast in the trial court on April 5, 1994. The complaint alleged that James Corrado fell July 17, 1993, on a foreign substance on the floor at a Finast store located at 18501 Neff Road. The complaint alleged that Finast negligently, recklessly, and wantonly failed to inspect the premises and make the store safe. Mary Corrado joined with a claim for loss of consortium. Defendants filed an answer denying the allegations of the complaint and raised various affirmative defenses. Finast filed a motion for summary judgment supported by James Corrado's deposition testimony. Finast argued that it was entitled to summary judgment as a matter of law because the Corrados failed to show that Finast (1) placed the foreign substance on the floor, (2) actually knew the substance was on the floor, or (3) should have known the substance was on the floor. The Corrados filed a brief in opposition supported by deposition testimony of Finast employees. The Corrados argued that James Corrado fell in the Health and Beauty Aids section in Aisle 7 on a "clear and/or a little - 3 - cloudy" shampoo or conditioner which had been spilled and blended in with the light beige floor. The Corrados argued that Finast's (1) buffing the tile floor on Saturday morning was negligent because it gave the floor an unusually high gloss which made it difficult to see spilled foreign substances, and (2) periodic inspections throughout the store for spills were inadequate. Finast filed a reply brief with additional legal arguments. The trial court granted Finast's motion for summary judgment in an order journalized on June 30, 1995. The Corrados timely appeal raising two assignments of error. I. The Corrados' first assignment of error follows: THE TRIAL COURT ERRED IN GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT SINCE A GENUINE ISSUE OF MATERIAL FACT EXISTED WITH RESPECT TO WHETHER DEFENDANT FINAST CREATED AN UNREASONABLY DANGEROUS CONDITION WHEN IT APPLIED AN UNUSUALLY HIGH GLOSS TO ITS BEIGE TILE FLOORS WHICH RESULTED IN A FLOOR THAT WAS SO SHINNEY [sic] THAT CUSTOMERS COULD NOT DETECT SPILLED LIQUIDS ON ITS SURFACE. This assignment of error lacks merit. The Corrados argue that Finast created a dangerous condition in the store by buffing the floor so that it became shiny and customers could not observe spilled clear liquids on the surface of the floor. The Corrados argue for the first time on appeal that this claim is supported by Perry v. Eastgreen Realty Co. (1978), 53 Ohio St.2d 51. In Boles v. Montgomery Ward & Co. (1950), 153 Ohio St. 381, the Ohio Supreme Court has recognized the following rule - 4 - governing slip and fall actions based on claims relating to floor treatments: The owner or operator of a store may treat the floor of his establishment with any dressing suited to the purpose and if such dressing is applied in a customary manner and without the intervention of negligence, no liability is incurred to a patron who thereafter slips and falls on the floor. Id. at syllabus paragraph three. The Boles Court held that as a matter of law store owners or operators are not liable to patrons who fall on clear liquids, such as water, even when the danger is allegedly compounded by the slippery nature of the floor treatment. The Corrados purport to distinguish this authority by making the novel claim that Finast's floor preparation in this case made spills of clear liquids invisible. This claim is untenable and the Corrados' reliance on Perry v. Eastgreen Realty Co., supra, to support the argument is misplaced. Perry involved a jury verdict for an invitee who walked into a pane of glass which had been permanently erected between two walls in an office. The glass was recessed between the two walls and was not well marked. The occupier of the premises had a duty to protect the invitee from this dangerous permanent structural condition because, at a minimum, the occupier should have known that this defect existed. The fact that the invitee was unable to see the glass while leaving the offices, because of the setting sun, explained why he was not contributorily negligent despite having observed the same pane of glass on his way into the office. - 5 - The Corrados made no argument that the floor in this case was constructed in a manner that made it permanently dangerous or that Finast used unsuitable floor treatments. The "shiny" condition of the floor was readily observable by James Corrado. The alleged danger arose only after a clear liquid was spilled on the floor. By their nature, however, clear liquids are transparent and difficult to discern. The Corrados presented absolutely no evidence that Finast negligently maintained the floor or that if the floor had been less "shiny" James Corrado or anyone else would have observed the clear liquid spilled on the floor prior to his fall. The owner or occupier's duty to warn or make the premises safe generally arises from its superior knowledge of the premises. Cases are legion of store owners granted summary judgment against patrons who fall on water tracked into the premises. Recovery in these cases requires proof of some negligence by the owner or occupier. See Boles v. Montgomery Ward & Co., supra, and Section II below. By imposing liability without requiring any evidence of the store's knowledge of the condition of its floor, the Corrados would transform the store into an insurer every time a patron fell on a clear liquid. Accordingly, the Corrados' first assignment of error is overruled. The Corrados' second assignment of error follows: THE TRIAL COURT ERRED IN GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT SINCE A GENUINE ISSUE OF MATERIAL FACT EXISTED WITH RESPECT TO WHETHER DEFENDANT FINAST WAS NEGLIGENT IN ITS FLOOR INSPECTION. - 6 - This assignment of error lacks merit. The Corrados contend that the trial court improperly granted summary judgment against them regarding James Corrado's slip and fall on the clear liquid in this case. This court recently summarized the standard in such cases as follows: 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 the 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, [sic] (3) that the substance had been on the floor long enough that the defendant should have known about it and removed it. Behnke v. B & C Tavern, dba Bucci's Restaurant (Dec. 14, 1995), Cuyahoga App. No. 68975, unreported at p. 5; Barnes v. University Hospitals of Cleveland (July 21, 1994), Cuyahoga App. No. 66799, unreported at p. 6 (citing, inter alia, Anaple v. Standard Oil Co. (1955), 162 Ohio St. 537). The Corrados have failed to establish any of these three elements. There is no evidence that a Finast employee placed the clear shampoo or conditioner on the floor, that Finast knew this clear liquid was on the floor and failed to remove it, or that the clear liquid had been on the floor long enough that Finast should have known about it and removed it. Without any such evidence, summary judgment was warranted in favor of Finast. It should be noted that the Corrados do not claim Finast placed the substance on the floor or that Finast knew it was on the floor. This court has recognized that, to establish the - 7 - third element of constructive notice, the plaintiff must present evidence concerning how long the spill existed. Combs v. First National Supermarkets, Inc. (June 15, 1995), Cuyahoga App. No. 67778, unreported at pp. 4-6 (evidence that water was on the floor in the main aisle near the cash registers for fifteen to twenty minutes was sufficient to raise issue of constructive notice). Because the Corrados failed to present such evidence, summary judgment was warranted against them as a matter of law. The Corrados further contend that periodic inspections of the aisles by Finast employees were inadequate. It is not clear what type of inspection the Corrados suggest should have been undertaken to discover the spill in this case. However, owners and occupiers of premises are not required to maintain a "large force of moppers" to ensure that invitees do not fall on liquids on the floor. Englehardt v. Phillips (1939), 136 Ohio St. 73, 80. The fact that an invitee fell is not evidence of negligence. Without any specific evidence of negligence, an injured patron cannot recover from the premises owner or occupier as a matter of law. Accordingly, the Corrados' second assignment of error is overruled. Judgment affirmed. - 8 - 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. JAMES D. SWEENEY, P.J., and O'DONNELL, J., CONCUR. DIANE KARPINSKI 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 .