COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70761 : BOOKER T. MALLARD : : : JOURNAL ENTRY Plaintiff-Appellant : : and v. : : OPINION GREATER CLEVELAND REGIONAL : TRANSIT AUTHORITY, ET AL. : : Defendants-Appellees : : : DATE OF ANNOUNCEMENT OF DECISION: JUNE 5, 1997 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. CV-284271 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellant: For Defendants-Appellees: ROBERT W. TODT, ESQ. LAWRENCE E. GAWELL, ESQ. Berger & Kirschenbaum Co., L.P.A. Associate Counsel 1919 East 13th Street Greater Cleveland Regional Cleveland, Ohio 44114 Transit Authority 615 Superior Avenue, West Cleveland, Ohio 44113 - 2 - KARPINSKI, J.: Plaintiff-appellant, Booker T. Mallard, appeals from the judgment of the trial court granting summary judgment in favor of defendants-appellees, Greater Cleveland Regional Transit 1 Authority and Harum Abd-Rauf, the driver of the train. On appeal, plaintiff posits two assignments which argue there is a genuine issue of material fact whether defendants are liable for plaintiff's injuries resulting from his slip and fall while he was riding a rapid transit car. For the reasons that follow, the judgment of the trial court is affirmed. On February 27, 1993, plaintiff slipped and fell in the process of sitting down on an RTA train. It is undisputed that the Windemere stop is the last stop on the eastward RTA line. When an eastbound trip ends at Windemere, the operator shuts down the train and walks to the west end of the train to begin the westbound trip to downtown Cleveland. Abd-Rauf stated in his deposition that RTA did not have any maintenance people clean the train at the layover. Customarily, the operator picks up any debris when he walks through the train. On the day in question, Abd-Rauf did not notice any kind of paper on the floor when he walked through the train at the Windemere station. He did 1 Plaintiff originally appealed after summary judgment was granted in favor of RTA only. We dismissed the appeal for lack of a final appealable order. Mallard v. Greater Cleveland Regional Transit Authority (Feb. 27, 1997), Cuyahoga App. No. 70761, unreported. After the trial court additionally granted summary judgment in favor of Abd-Rauf, we granted plaintiff's motion to reinstate the appeal. - 3 - remember plaintiff boarding the train at the next stop, Superior. As the train was approaching the E. 120th stop, plaintiff came to Abd-Rauf and stated that he fell. Abd-Rauf then called RTA and had EMS waiting to help plaintiff when the train arrived at Tower City. After plaintiff told Abd-Rauf that he had fallen, Abd- Rauf asked over the public address system whether anyone had seen the man fall. No one on the train came forward. The record is silent as to how many people got on or off the train at the Superior station. Plaintiff testified that on the day of the incident he was wearing a low-cut work shoe. He described the circumstances as follows: Q. You got on the train, you paid your fare, you started toward your seat. What happened next that you remember? A. Okay, as I was getting ready to seat myself I slipped on this slippery -- it appeared to me to be wax paper, it was wet, and before I could brace myself I was on the floor. (Tr. 17.) He said the wax paper was sandwich-sized. Plaintiff stated he saw the wax paper on the sole of his right shoe after he fell. According to the plaintiff, the lighting was "bright" and he observed no other trash or debris on the floor. Abd-Rauf also stated that he did not see any garbage lying on the floor of the rapid transit car; nor did he see any wax paper. The trial court granted summary judgment for both defendants. On appeal, plaintiff raises the following two assignments, which state as follows: - 4 - I. WHETHER DEFENDANTS-APPELLEES BREACHED THEIR DUTY TO KEEP PLAINTIFF-APPELLANT FREE FROM UNREASONABLY DANGEROUS CONDITIONS PRESENT ON THE RAPID TRANSIT CAR; II. WHETHER DEFENDANTS-APPELLEE HAD ACTUAL AND/OR CONSTRUCTIVE NOTICE OF THE PIECE OF WAXED PAPER THAT HAD CAUSED PLAINTIFF BOOKER T. MALLARD TO SLIP AND FALL. In these two assignments, plaintiff argues that summary judgment was improperly granted for defendants because there is a genuine issue of material fact as to whether defendants breached a duty of care to plaintiffs. 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. Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327. A 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. Once it is shown, however, "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; Civ.R. 56(E). In the complaint, plaintiff alleged that defendants were negligent in allowing the existence of accumulated debris, which created an unreasonable risk to the passengers. In order to establish actionable negligence, one must show the existence of a - 5 - duty, a breach of that duty, and an injury proximately resulting therefrom. Jeffers v. Olexo (1989), 43 Ohio St.3d 140. A defendant's duty to a plaintiff depends upon the relationship between the parties and the foreseeability of injury to someone in the plaintiff's position. Huston v. Konieczny (1990), 52 Ohio St.3d 214. Finally, Ohio law has long held the position that, "An inference of negligence can arise only upon the proof of some fact from which such inference can be reasonably drawn and it can never arise from mere guess, speculation, or wishful thinking." Parras v. Standard Oil Co. (1953), 160 Ohio St. 315, paragraph two of the syllabus. Ordinarily, a property owner owes a business invitee a duty of ordinary care in maintaining the premises in a reasonably safe condition so that its customers are not unreasonably exposed to unnecessary danger. Paschal v. Rite Aid Pharmacy, Inc. (1985), 18 Ohio St.3d 203. However, because defendant RTA is a common carrier, its duty is to exercise the highest degree of care for the safety of its passengers consistent with the practical operation of the system. Dietrich v. Community Traction Co. (1964), 1 Ohio St.2d 38. Regarding this higher standard, this court has cautioned, While it is true that the railway company owes a duty of the highest degree of care to its passengers, it cannot be regarded as an insurer of the safety of passengers. In judging whether or not the railway company exercised the highest degree of care toward this plaintiff, reference must be had to the surrounding circumstances. - 6 - Rahman v. Greater Regional Transit Authority (June 2, 1994), Cuyahoga App. No 66166, unreported at 2. Regarding their standard of care, common carriers have a duty to warn their passengers of dangerous conditions known or reasonably ascertainable by the carrier. James v. Wright (1991), 76 Ohio App.3d 493, 495. In the case at bar, there is no evidence that Abd-Rauf or RTA had any knowledge, actual or constructive, of any debris that posed a risk to plaintiff as he went to take his seat. Neither plaintiff nor Abd-Rauf saw any paper on the train before plaintiff fell. No other witness testified seeing the wax paper in the isle of the train. Plaintiff has not controverted Abd- Rauf's deposition testimony that there was no debris in the aisle when he walked from one end of the train to the other at Windemere. Even if the evidence is construed in a light most favorable to plaintiff, there is no evidence that Abd-Rauf was on any notice actual or constructive as to any wax paper in the aisle of the train. Plaintiff's evidence is that he slipped on the train and wax paper was found on the sole of his shoe even though he did not notice the paper in the aisle before he fell. Under these facts, the wax paper was either in the aisle prior to plaintiff's slip or on his sole when he boarded the train. Plaintiff's claim of negligence requires the necessary inference that the paper was in the aisle prior to his fall and not, for example, brought in by plaintiff himself. While the standard for summary judgment - 7 - requires the trial court to construe facts most favorably to the nonmoving party, the standard does not require the court to speculate as to facts that are not a part of the record. Parras, supra. Thus, plaintiff did not present sufficient evidence to overcome the motion for summary judgment. Moreover, as stated supra, when determining the high standard of care owed to passengers, a court must be mindful of surrounding circumstances. It would be impracticable for the train driver to have to inspect the aisles of the train at every stop or for defendant RTA to hire an employee to inspect the train walkways after each stop. Accordingly, the trial court did not err in granting summary judgment in favor of defendants. Judgment affirmed. - 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. NAHRA, P.J., and PATTON, J., CONCUR. DIANE KARPINSKI JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement .