COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70101 EUGENIA HOWARD : : Plaintiff-Appellant : : JOURNAL ENTRY -vs- : AND : OPINION WAL-MART STORES, INC. : : Defendant-Appellee : : DATE OF ANNOUNCEMENT OF DECISION OCTOBER 24, 1996 CHARACTER OF PROCEEDING Civil appeal from Court of Common Pleas Case No. 284567 JUDGMENT Affirmed DATE OF JOURNALIZATION APPEARANCES: For Plaintiff-Appellant: For Defendant-Appellee: RICHARD L. DEMSEY, ESQ. JOHN R. SCOTT, ESQ. JOHN P. SCHLOSS, ESQ. BRIAN SULLIVAN, ESQ. SANDRA J. ROSENTHAL, ESQ. Reminger & Reminger Co., L.P.A. Nurenberg, Plevin, Heller The 113 St. Clair Building & McCarthy Co., L.P.A. Cleveland, Ohio 44114 1370 Ontario St., 1st Floor Cleveland, Ohio 44113-1792 - 2 - JAMES M. PORTER, J., Plaintiff-appellant appeals from a summary judgment entered in favor of defendant-appellee Wal-Mart Stores, Inc. arising out of plaintiff's claim for injuries resulting from a slip and fall on defendant's premises. Plaintiff claims disputed facts precluded summary judgment. We find no error and affirm. According to plaintiff's deposition, she was shopping at Wal- Mart. As she was about to leave the store, she decided to go to the nearby food service court and obtain a beverage. She walked from the checkout area towards the food service court. As she approached the concession area, she glanced up at the menu to make her selection. She was about halfway there when she claims she slipped on a yellow colored substance and fell. No one was ahead of plaintiff as she was walking and no obstacles blocked her view. There was no line in the food service court and plaintiff did not recall any customers in the area. Plaintiff could neither identify the substance on which she fell nor say if it was a food product. She described it as a mustard type thing, brown around the edges and kind of yellowish, a dirty yellow. She further testified that she had no way of knowing how long the substance had been on the floor. There was no evidence that the defendant or its employees had any actual knowledge of the substance or how it got there. - 3 - Plaintiff's sole assignment of error states as follows: I. THE TRIAL COURT ERRED IN GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT ON PLAINTIFF'S NEGLIGENCE CLAIM WHEN THERE WERE GENUINE ISSUES OF MATERIAL FACT AS TO WHETHER DEFENDANT HAD NOTICE (ACTUAL AND CONSTRUCTIVE) OF THE HAZARD WHICH CAUSED PLAINTIFF'S INJURY. (R. 12). Under Civ. R. 56, summary judgment is proper when: (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 conclusion, and viewing such evidence most strongly in favor of the nonmoving party, that conclusion is adverse to the party against whom the motion for summary judgment is made. State, ex rel. Parsons v. Fleming (1994), 68 Ohio St.3d 509, 511; Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327. 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 nonmoving party. Murphy v. Reynoldsburg (1992), 65 Ohio St.3d 356, 358-59. In Dresher v. Burt (1996), 75 Ohio St.3d 280, the Ohio Supreme Court modified the summary judgment standard as applied in Wing v. Anchor Media, Ltd. of Texas (1991), 59 Ohio St.3d 108. Under the new standard, "*** the moving party bears the initial responsibility of informing the trial court of the basis for the motion, and identifying those portions of the record which demonstrate the absence of a genuine issue of fact or a material - 4 - element of the nonmoving party's claim." Dresher at 296. The nonmoving party has a reciprocal burden of specificity and cannot rest on mere allegations or denials in the pleadings. Id. at 293. The nonmoving party must set forth "specific facts" by the means listed in Civ. R. 56(C) showing a genuine issue for trial exists. Id. This Court reviews the lower court's granting of summary judgment de novo. Brown v. Scioto Bd. of Commrs. (1993), 87 Ohio App.3d 704, 711 ("We review the judgment independently and without deference to the trial court's determination"). An appellate court reviewing the grant of summary judgment must follow the standards set forth in Civ. R. 56(C). "The reviewing court evaluates the record *** in a light most favorable to the nonmoving party. *** [T]he motion must be overruled if reasonable minds could find for the party opposing the motion." Saunders v. McFaul (1990), 71 Ohio App.3d 46, 50; Link v. Leadworks Corp. (1992), 79 Ohio App.3d 735, 741. We find that this appeal is governed by a long line of slip and fall cases which we recognized recently in Combs v. First Natl. Supermarkets, Inc. (1995), 105 Ohio App.3d 27, 29-30, where we stated: 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: "1. That the defendant through its officers or employees was responsible for the hazard complained of; or - 5 - "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. 584, 589, 26 O.O. 161, 163, 49 N.E.2d 925, 928. Moreover, Anaple v. Std. Oil Co. (1955), 162 Ohio St. 537, 55 O.O. 424, 124 N.E.2d 128, paragraph one of the syllabus, states that in a case like this the plaintiff must prove the following: "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 of 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." In the present case, the issue is whether a fifteen-to-twenty minute period in which clear liquid lies on a floor is sufficient to allow an inference that the store had constructive notice of the spill. The standard for determining sufficient time to enable the exercise of ordinary care requires evidence of how long the hazard existed. Id. at 541, 55 - 6 - O.O. at 426, 124 N.E.2d at 130. 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 Natl. Supermarkets (June 12, 1991), Cuyahoga App. No. 61005, unreported, 1991 WL 106060. Given the circumstances of this case, we find no error in the grant of summary judgment for the defendant. Plaintiff slipped and fell on a foreign substance on her way to the food court. There was no evidence as to how long the substance was on the floor, whether it was from food, or whether any store employee was aware of its presence. "Appellants presented no evidence indicating appellee's knowledge or constructive knowledge of the foreign substance. In the absence of such evidence, the lower court was bound by Anaple and Fisher Foods, supra, to award summary judgment in favor of appellee." Krasinski v. Rite Aid Corporation (Oct. 6, 1994), Cuyahoga App. No. 69293, unreported at 7-8; Behnke v. B & C Tavern (Dec. 14, 1995), Cuyahoga App. No. 68975, unreported at 6; Green v. Fisher Foods, Inc. (Nov. 22, 1989), Cuyahoga App. No. 55886, unreported at 5. In the instant case, plaintiff asserts that the foreign substance appeared to be mustard, yellowish in color, with a brown or crusted appearance around the edges. This, plaintiff contends, permits an inference that the substance had existed for a significant period of time and afforded the defendant constructive notice of the condition. In the recent case of Catanzano v. The Kroger Company (Jan. 11, 1995), Hamilton App. No. C-930761, - 7 - unreported, the plaintiff made a similar argument that the appearance of a dark ring around ice cream spilled on a supermarket floor created an inference that it was there for a sufficient time period to put the store on constructive notice. The court reviewed a line of authorities which held that "absent proof of when the substance was deposited on the floor, the court[s] did not permit an inference of length of time from the physical appearance of the foreign substance." The court stated as follows in view of these authorities at 5: The record contains no evidence of actual notice or that someone other than a customer was responsible for putting the substance on the floor. Neither, in our view, does the record contain evidence sufficient to satisfy the stringent standard adopted by the supreme court for constructive notice. The suggestion that the appearance of a dark ring around ice cream, spilled on a supermarket floor, without more, creates an inference that it was there for any particular period of time, be it one minute or thirty minutes, is still speculative even when the evidence is construed most strongly in the Catanzanos' favor. The Catanzanos' reliance upon Kokinos v. Ohio Greyhound, Inc., supra, to validate the sufficiency of the suggested inference is misplaced where the issue is ordinary negligence. In Fogle v. Shaffer (1958), 167 Ohio St. 353, 358-59, 148 N.E.2d 687, 690, the supreme court isolated its holding in Kokinos to liability of common carriers which owe the "highest degree of care to a passenger." Therefore, construing the evidence in the light most favorable to the Catanzanos, reasonable minds could have come to but one conclusion as to proof of constructive notice, and that conclusion was adverse to their claim against Kroger. See, also, Mackey v. The Kroger Company (Aug. 22, 1994), Belmont App. No. 92-0-56, unreported (three grocery cart tracks through a melted popsicle insufficient to demonstrate constructive notice). - 8 - This Court reached a similar conclusion in Powers v. First Nat'l Supermarkets (June 13, 1991), Cuyahoga App. No. 61005, unreported, where the plaintiff claimed that defendant should have known about the dark and greasy spot which caused her fall because it was "partially absorbed in the concrete." In rejecting this inference, we stated at 5: In the case, sub judice, appellant's only evidence is that she believed that the slippery substance was there for "quite some time" and "appeared to have been partially absorbed." This evidence is not persuasive. The totality of the circumstances must indicate that a hazard could have been in place for a sufficient amount of time to warrant the exercise of ordinary care by the owner or operator of the business. Wright v. K-Mart (Mar. 12, 1987), Cuyahoga App. No. 51709, unreported (where store manager and a repairman standing nearby a slip and fall is not proof of motive of a hazard for a sufficient time). A belief based upon no factual basis other than it looked absorbed is not sufficient, especially in this case, where the movant's evidence refuted the appellant's belief that the substance was in fact present. In addition, it was undisputed that there was no obstruction or traffic that prevented plaintiff in the exercise of due care from observing the area and avoiding a patent and obvious condition. Indeed, plaintiff claims the food court clerks had the same unobstructed view of the condition that she had and should have noticed it. Customers in retail stores such as those of defendant are under a duty to use ordinary care so as to provide for their own safety, which includes a duty to look where they are walking. Parsons v. Lawson (1989), 57 Ohio App.3d 49, 51 (summary - 9 - judgment for store affirmed where plaintiff tripped over empty boxes in aisle while looking into coolers to select items). An owner or occupier of property owes no duty to warn invitees entering property of open and obvious dangers on property. Simmers v. Bentley Constr. Co. (1992), 64 Ohio St.3d 642, 655. The rule relieving a defendant from liability for harm resulting from "open and obvious" hazards is a legal doctrine that has developed in suits against property owners by a person injured when he comes on the property. The "open and obvious" doctrine states that an owner or occupier of property owes no duty to warn invitees entering the property of open and obvious dangers on the property. Sidle v. Humphrey (1968), 13 Ohio St.2d 45, 42 O.O.2d 96, 233 N.E.2d 589, at paragraph one of the syllabus; Paschal v. Rite Aid Pharmacy, Inc. (1985), 18 Ohio St.3d 203, 18 OBR 267, 480 N.E.2d 474. The rationale behind the doctrine is that the open and obvious nature of the hazard itself serves as a warning. Thus, the owner or occupier may reasonably expect that persons entering the premises will discover those dangers and take appropriate measures to protect themselves. Sidle, supra. Simmers, supra at 644. This Court has recently addressed the open and obvious doctrine in slip and fall cases and found summary judgment appropriate where the hazardous condition was in plain view as it was here. See, e.g., Allen v. Peleda, Inc. (July 3, 1996), Cuyahoga App. No. 69508, unreported (summary judgment proper for owner of apartment complex where tenant stepped into eight inch wide hole in parking lot); Corrado v. First National Supermarkets (May 2, 1996), Cuyahoga App. No. 69362, unreported (summary judgment appropriate for store where customer slipped on clear or - 10 - cloudy shampoo or conditioner spilled onto aisle of grocery store); Fortesque v. Rini Rego Supermarkets, Inc., dba Riser Foods, Inc. (April 25, 1996), Cuyahoga App. No. 69293, unreported (store not negligent where patron slipped and fell on temporary wooden ramp used as entry into store). In the instant case, there was no evidence that the area was poorly lighted or that the condition was in any way concealed or hidden from view. Summary judgment was properly granted. Plaintiff's sole assignment of error is overruled. Judgment affirmed. - 11 - 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. BLACKMON, P.J., and HARPER, J., CONCUR. JAMES M. PORTER 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 .