COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69530 FRANCES J. CHRISTOVICH, : ACCELERATED DOCKET : : : JOURNAL ENTRY Plaintiff-Appellant : : AND vs. : : OPINION GUND REALTY, : : : Defendant-Appellee : PER CURIAM : DATE OF ANNOUNCEMENT OF DECISION: APRIL 4, 1996 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. CV-276530 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: For Defendant-Appellee: HARRY J. JACOB, III., Esq. NITA KAY SMITH, Esq. JOSEPH A. PFUNDSTEIN, Esq. Quandt, Giffels & Buck Co., L.P.A. Jacob & Associates 800 Leader Building 33790 Bainbridge Road #205 526 Superior Avenue, N.E. Solon, Ohio 44139 Cleveland, Ohio 44114 - 2 - PER CURIAM: This matter came to be heard upon the accelerated calendar of the court pursuant to App. R. 11.1 and Local R. 25, which eliminates delay and expense and allows the statement of reasons for the court's decision to be in brief and conclusionary form. Frances J. Christovich appeals the trial court's grant of summary judgment to Gund Realty denying her claim for injuries sustained when she slipped and fell in a covered walkway enroute to the Hillcrest Medical Building which is operated by Gund Realty. On December 30, 1992, a rainy day, Christovich parked her car on the roof of a parking garage adjacent to the Hillcrest Medical Building and descended a flight of stairs to an alcove where she entered a walkway connecting the garage with the medical building. She noticed the wetness of the carpet when she stepped on it and observed moisture on the floor from other traffic. As she began to descend a grade in the walkway, Christovich slipped and fell, thereby injuring her left hip, wrist and elbow. On September 8, 1994, Christovich sued Gund Realty for her injuries. Gund in response, filed a motion for summary judgment which the trial court granted. Christovich now appeals assigning one error for our review. It states: I. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT TO DEFENDANT-APPELLEE IN THAT THERE EXISTS GENUINE - 3 - ISSUES OF MATERIAL FACTS WHICH PRECLUDES SUCH JUDGMENT. Christovich argues that the court erred in granting summary judgment because genuine issues of material fact exists as to whether Gund Realty breached its duty of care to her as a business invitee where the conditions of the wet floor, combined with the slope of the walkway, and lack of handrails or a warning sign, created a hazardous condition. Gund contends that the court properly granted summary judgment in this case because an owner of a premises is not liable for injuries caused by tracked-in water or from an open and obvious premises condition. Thus, the issue presented for our review is whether the trial court properly granted summary judgment in this case. Pursuant to Civ. R. 56, summary judgment is proper when, after construing the evidence most strongly in favor of the non- moving party, the court determines that no genuine issues of material fact exist, the moving party is entitled to judgment as a matter of law, and reasonable minds could come to but one conclusion, which is adverse to the non-moving party. See Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327. Moreover, it is well settled that the party seeking summary judgment bears the burden of showing that no genuine issue of material fact exists for trial. Celotex Corp. v. Catrett (1987), 477 U.S. 317, 330; Mitseff v. Wheeler (1988), 38 Ohio St.3d 112, 115. Doubts must be resolved in favor of the nonmovant. Murphy - 4 - v. Reynoldsburg (1992), 65 Ohio St.3d 356, 358-59. Under Civ. R. 56(E) "a nonmovant may not rest upon the mere allegations or denials of his pleadings but must set forth specific facts showing there is a genuine issue for trial." Chaney v. Clark Cty. Agricultural Soc. (1993), 90 Ohio App.3d 421, 424. The parties agree that Christovich's status at the medical building was that of a business invitee. Ohio law establishes that an owner of a premises owes a duty to a business invitee to maintain the premises in a reasonably safe condition and to warn the invitee of any latent dangers. Paschal v. Rite Aid Pharmacy, Inc. (1985) Ohio St.3d 203. However, an owner of a business premises is not an insurer against all forms of risk. Supra, at 203. Additionally, in Sidle v. Humphrey (1968), 13 Ohio St.2d 45, the Supreme court stated in paragraph one of the syllabus that: [A]n occupier of premises is under no duty to protect a business invitee against dangers which are known to such invitee or are so obvious and apparent to such invitee that he may reasonably be expected to discover them and protect himself against them. Here, the parties agree that wetness on the slope of the walkway caused Christovich to slip and fall, but they disagree as to whether it was in fact tracked-in water. Gund asserts that this wetness originated when other patrons tracked-in water from the outside. Concerning that possibility, we note that the Supreme Court has consistently held with regard to tracked-in water cases that: - 5 - Ordinarily, no liability attaches to a store owner of operator for injury to a patron who slips and falls on the store floor which has become wet and slippery by reason of water and slush tracked in from outside by other patrons. Paragraph two of the syllabus, Boles v. Montgomery Ward & Co. (1950), 153 Ohio St. 381 and followed in Paschal v. Rite Aid Pharmacy, Inc. (1985), 18 Ohio St.3d 203, 204. Christovich, on the other hand, contends that the wetness is an unknown foreign substance and therefore the standard set forth in Anaple v. Standard Oil Co. (1955), 162 Ohio St. 537 should apply. That standard provides: 1. That the nature, size, extent and location of such (foreign substance) involved a potential hazard to customers, sufficient to justify a reasonable conclusion that the duty of ordinary care, which the operator of such (premises) owes to his customers, would require such operator to prevent or remove such a (foreign substance) 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 (premises) 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. Burns v. University Hospital of Cleveland (July 21, 1994) Cuyahoga App. No. 66799, unreported. The record reflects that Christovich testified in her deposition that she saw that water had been tracked in by other patrons, but she did not examine the liquid substance which caused her to fall, presuming it to be water. Hence, she did not establish that she fell on a foreign substance. Further, she testified that she had no knowledge that Gund was aware of the - 6 - condition prior to the accident and hence also failed to establish notice as required by Anapole, supra. Thus, whether the trial court analyzed this case as a tracked-in water or foreign substance case, Gund had no duty to Christovich. In this case, Gund cannot be liable for Christovich's slip and fall accident. We therefore conclude that the trial court properly granted summary judgment in favor of Gund, and accordingly find no merit to this assigned error. The judgment of the trial court is affirmed. - 7 - It is ordered that appellee recover of appellant 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, PRESIDING JUDGE TERRENCE O'DONNELL, JUDGE 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 announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, .