COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70949 : ACCELERATED DOCKET JANE F. SWEIGERT, et al : : JOURNAL ENTRY Plaintiff-Appellants : : and -vs- : : OPINION FINAST SUPERMARKETS, INC. : : Defendant-Appellee : PER CURIAM : : DATE OF ANNOUNCEMENT OF DECISION : FEBRUARY 6, 1997 CHARACTER OF PROCEEDING : Civil appeal from : Court of Common Pleas : Case No. 291,208 JUDGMENT : AFFIRMED DATE OF JOURNALIZATION : __________________________ APPEARANCES: For plaintiff-appellants: PAUL M. KAUFMAN Attorney at Law 801 Terminal Tower 50 Public Square Cleveland, Ohio 44113-2203 For defendant-appellee: G. RICHARD McDONALD MARC A. SANCHEZ Attorneys at Law 1700 Midland Building Cleveland, Ohio 44115 - 2 - PER CURIAM: This cause came on to be heard upon the accelerated calendar pursuant to App.R. 11.1 and Loc.R. 25, the records from the Cuyahoga County Court of Common Pleas, the briefs, and the oral arguments of counsel. This court is asked to determine whether summary judgment was properly granted to defendant-appellee, Finast Supermarkets, Inc. ("Finast"), on the complaint filed by plaintiff-appellant, 1 Jane E. Sweigert ("appellant"), for injuries sustained when she slipped and fell on a loose strawberry while grocery shopping at Finast. For the reasons that follow, we find no error and affirm the deci-sion of the Cuyahoga County Common Pleas Court, which granted Finast's motion for summary judgment. On April 1, 1994, appellant was in the produce section of Finast when she decided to purchase strawberries being displayed there. While part of the display was surrounded by carpet run- ners, the area that appellant approached was not carpeted. As she neared the display, she slipped and fell on a loose strawberry, sustaining serious injuries. 1 Although Jane Sweigert's husband is also a plaintiff- appellant in this case, it was Jane Sweigert who slipped and fell. In order to avoid confusion, they will collectively be referred to as "appellant" in this opinion. - 3 - Appellant and her husband filed a complaint alleging that Finast was negligent in maintaining the floor surrounding the strawberry display. Finast moved for summary judgment on the basis that neither Finast nor any of its employees had actual or constructive knowledge of the loose strawberries. Attached to its motion were excerpts of appellant's deposition and an affidavit of Finast Assistant Produce Manager William A. Leonello averring that he had cleaned the area only two minutes before appellant's fall. Finast argued that, absent any evidence that it created the hazardous condition, summary judgment in its favor was proper. Appellant opposed Finast's motion arguing that Finast had actual knowledge that the "strawberries presented a risk of injury to customers" and that a question of fact existed as to whether it failed to exercise reasonable care in maintaining the area. In support of her argument, appellant appended to her brief excerpts of Mr. Leonello's deposition wherein he testified that the placement of carpeting around the strawberry display could have lessened the likelihood of a customer slipping and falling. In an entry journalized on June 25, 1996, the trial court granted Finast's motion for summary judgment without opinion. Appellant timely appeals and presents the following errors for our review: I. THE TRIAL COURT ERRED IN GRANTING SUM- MARY JUDGMENT WHEN GENUINE ISSUES OF - 4 - MATERIAL FACT WERE PRESENTED IN THE RECORD. II. A GENUINE ISSUE OF MATERIAL FACT EXISTS AS TO WHETHER THE DEFENDANT'S PRODUCE MANAGER HAD ACTUAL OR CONSTRUCTIVE NOTICE OF THE HAZARDOUS CONDITIONS THAT CAUSED PLAINTIFF'S INJURIES. III. THE DEFENDANT'S EMPLOYEE BREACHED THE DUTY THE DEFENDANT OWED MRS. SWEIGERT TO AVOID UNREASONABLE RISK OF HARM BY FAIL- ING TO INSPECT THE AREA PROPERLY AND FAILING TO POSITION CARPETING AROUND THE ENTIRE DISPLAY. IV. THE DEFENDANT'S FAILURE TO PLACE CARPET- ING IN AN UNCARPETED AREA OF THEIR PRO- DUCE DISPLAY CREATED A FORESEEABLE AND UNREASONABLE RISK OF HARM TO THE PLAIN- TIFF. Appellant's assignments of error are interrelated, and all challenge the propriety of the trial court's decision granting Finast summary judgment. Consequently, we will address appel- lant's assignments of error simultaneously. It is undisputed that appellant was a business invitee of Finast. Finast owed appellant, as a business invitee, a duty to 2 exercise ordinary care for her safety. In order for a plaintiff to recover damages from a slip-and-fall accident as a business invitee, the Supreme Court of Ohio, in Johnson v. Wagner Provi- 3 sion Co. , stated that the following must be established: 2 Light v. Ohio Univ. (1986), 28 Ohio St.3d 66, 68; Presley v. Norwood (1973), 36 Ohio St.2d 29, 31. 3 Johnson v. Wagner Provision Co. (1943), 141 Ohio St. 584, 589. - 5 - 1. That the defendant through its officers or employees was responsible for the hazard complained of; or 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 suf- ficient length of time reasonable to justify the inference that the failure to warn against it or remove it was attributable to a want of ordinary care. Evidence of how long a hazardous condition has been in exis- tence is necessary in determining whether a business owner should 5 be charged with constructive knowledge. If the owner created the hazardous condition, however, the plaintiff is relieved from 6 demonstrating that the owner had knowledge or notice. In such a case, knowledge is presumed because the owner knew what he had 7 created. In this case, appellant argues that Finast created the haz- ardous condition by neglecting to place carpeting around the en- tire strawberry display, a preventive measure she argues that would have averted her fall. Appellant makes a disingenuous 4 See, also, Anaple v. The Standard Oil Company (1955), 162 Ohio St. 537, paragraph one of the syllabus; Combs v. First Natl. Supermarkets, Inc. (1995), 105 Ohio App 3d. 27, 29. 5 Kubiszak v. Rini's Supermarket (1991), 77 Ohio App.3d 679, 687; Howard v. Wal-Mart Stores, Inc. (Oct. 24, 1996), Cuyahoga App. No. 70101, unreported at 5-6. 6 Presley, 36 Ohio St.2d at 31; Crane v. Lakewood Hosp. (1995), 103 Ohio App.3d 129, 136. 7 Crane, supra, at 136. - 6 - attempt at urging this court to find Finast liable based on an argument that has no support in the applicable law. In order for Finast to be liable under the first prong of the test set forth in Johnson, appellant must show that Finast was responsible for placing the strawberry on the floor in the first place. In the absence of evidence that Finast did so, appellant's reliance on the lack of carpeting as creating the hazardous condition respon- sible for appellant's fall is erroneous. Consequently, it becomes necessary to ascertain whether Finast had actual or constructive knowledge of the stray straw- berry so as to impose liability upon it. If it could be shown that Finast knew that the strawberry was on the floor or that it had been there for a sufficient time so as to impose constructive notice upon it, then Finast would have breached its duty owed to appellant. Even construing the documentary evidence appended to the parties' briefs in a light most favorable to appellant, as we 8 must, such a conclusion is insupportable. Appellant testified during deposition that she was unaware of how the strawberry reached the floor or how long it had been there before her fall. Finast's Assistant Produce Manager, Mr. Leonello, averred that he had just cleaned the area not more than two minutes before appellant's fall and that no loose strawber- ries remained on the floor. Contrary to appellant's argument, Finast does not have to possess actual or constructive knowledge 8 Morris v. Ohio Cas. Ins. Co. (1988), 35 Ohio St.3d 45; Harless v. Willis Day Warehousing (1978), 54 Ohio St.2d 64. - 7 - of the lack of carpeting surrounding the display. Instead, Finast must be aware of the strawberry on the floor. The testimony of Mr. Leonello does not support that Finast had actual knowledge of the loose strawberry's existence, nor can it be said that the two-minute interval between the time of appellant's fall and the most recent cleanup constitutes suffi- cient time within which to impute knowledge to Finast. The Ohio Supreme Court has consistently held that such a short interval is 9 insufficient to charge Finast with constructive notice. In reviewing a motion for summary judgment, an appellate court conducts a de novo review of the trial court's decision. "A court reviewing the granting of a summary judgment must follow 10 the standards set forth in Civ.R. 56(C) *** ." Civ.R. 56(C) provides that before summary judgment may be granted, it must be determined 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 such evi- dence that reasonable minds can come to but one conclusion and, reviewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that con- 11 clusion is adverse to the party." 9 Johnson, 141 Ohio St. at 588; Hardgrove v. Isaly Diary Co. (1942), 139 Ohio St. 641, 643. 10 Aglinsky v. Cleveland Builders Supply Co. (1990), 68 Ohio App.3d 810, 814. 11 Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327. - 8 - Because appellant has not presented any evidence that Finast was responsible for placing the stray strawberry on the floor or that Finast possessed actual or constructive knowledge of its existence, no genuine issue remains to be litigated, and summary 12 judgment was properly granted to Finast. Accordingly, appellant's assignments of error are overruled. 12 See Corrado v. First Nat. Supermarkets (May 2, 1996), Cuyahoga App. No. 69362, unreported; Kilburn v. Acme-Click (June 8, 1995), Cuyahoga App. No. 67752, unreported; Huff v. First Nat. Supermarkets, Inc. (June 9, 1994), Cuyahoga App. No. 65118, unreported. - 9 - This cause is affirmed. 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 Cuyahoga County 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. LEO M. SPELLACY, CHIEF JUSTICE DAVID T. MATIA, JUDGE TIMOTHY E. McMONAGLE, 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 .