COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71247 KIMBERLY SMITH : : : PLAINTIFF-APPELLANT : JOURNAL ENTRY : v. : AND : : OPINION FINAST SUPERMARKETS, INC., ET AL.: : : DEFENDANTS-APPELLEES : DATE OF ANNOUNCEMENT OF DECISION: JUNE 12, 1997 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court, Case No. CV-300028. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-appellant: E. Yvonne Harris, Esq. 350 Park Plaza 1111 Chester Avenue Cleveland, Ohio 44114 For Defendants-appellees: Jan L. Roller, Esq. Marc A. Sanchez, Esq. 1700 Midland building Cleveland, Ohio 44115 - 2 - SWEENEY, JAMES D., C.J.: Plaintiff-appellant Kimberly Smith appeals from the trial court's order granting the motion for summary judgment of the defendant-appellee Finast Supermarkets, Inc. The appellant filed suit to recover damages for injuries suffered as a result of a slip and fall as she exited the appellee's store located at 11501 Buckeye Road, Cleveland, Ohio. On Sunday, December 19, 1993, the appellant purchased various items at the Finast store. While pushing her shopping cart, the appellant proceeded through the first set of vestibule area doors and was exiting through the second set of doors as she fell. The appellant's daughters, Shayna Smith and Tanita Smith, each affirmed that the appellant fell on yellow plastic strips which had been left on the floor. These plastic yellow strips were identified by the appellant as the kind used by grocery stores to bind boxes. These plastic strips were identified by Jeffrey Brzeczkowski, the store manager, as the type used by vendors to bind newspapers. The appellant did not see the plastic debris prior to her fall (Smith depo T. 26); did not know how long they were there prior to her fall (Smith depo T. 27); and could present no evidence that any Finast employee was responsible for either placing or leaving the plastic on the ground (Smith depo T. 27). The appellant could only state her assumption that, "I feel that Finast workers left them there (Smith depo T. 27). - 3 - Mrs. Smith's fall was observed by Mr. Jeffrey King, an independent bystander. He assisted Mrs. Smith back into the store where she spoke to the manager. The manager was given the plastic strips by either the security guard (affidavit of Neil Anderson) or by the appellant's daughter (Smith depo T. 33). Mr. Brzeczkowski affirmed that: 1) he did "not know how the broken, plastic bundle strip came to be on the exit mat outside the store, nor [was he] aware that any other employee knew of its presence" and, 2) that he did "not know how long the broken, plastic bundle strip came to be on the exit mat outside the store, nor [was he] aware that any other employee knew how long the plastic bundle strip was there." Mr. Brzeczkowski affirmed that the Finast store is located in a strip shopping center and that there are other retail shopping stores in close proximity. Mr. Brzeczkowski speculated as to the various ways in which the plastic strips could have ended up in the exit of the Finast store. The appellant sets forth one assignment of error: THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN GRANTING SUMMARY JUDGMENT IN FAVOR OF DEFENDANT/APPELLEE AND USURPED THE DOMAIN OF THE JURY BECAUSE GENUINE ISSUES OF FACT EXISTED AND THE COURT ERRONEOUSLY RESOLVED THEM. The appellant argues that the trial court erred in granting the appellee's motion for summary judgment because evidence was presented that the appellee breached its duty to a business invitee to keep its premises in a reasonably safe condition. The appellant - 4 - also posits that the trial court failed to make all reasonable inferences in favor of the nonmoving party, the appellant. Summary judgment is appropriately rendered when no genuine issue as to any material fact remains to be litigated; the moving party is entitled to judgment as a matter of law; it appears from the evidence that reasonable minds can come but to one conclusion; and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party. Turner v. Turner (1993), 67 Ohio St.3d 337, citing to Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, and Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64. The nonmoving party must produce evidence on any issue for which that party bears the burden of production at trial. Celotex Corp. v. Catrett (1978), 477 U.S. 317. An appellate court reviews the lower court's determination on a motion for summary judgment de novo. Koos v. Cent. Ohio Cellular, Inc. (1994), 94 Ohio App.3d 579. Assuming arguendo, the trial court did, in fact, apply an incorrect standard of review, this court's de novo review of the evidence, Koos, supra, eliminates any prejudice to the appellant. This court has held that the law in 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: - 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 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. Combs v. First Natl. Supermarkets, Inc. (1995), 105 Ohio App.3d 27, citing to Johnson v. Wagner Provision Co. (1943), 141 Ohio St. 584. See also Anaple v. Standard Oil Co. (1955), 162 Ohio St. 537, where the Supreme Court set forth the burden the plaintiff must prove to establish liability under these circumstances: "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 case sub judice, the appellant presented insufficient evidence from which to identify a party or parties actually - 6 - responsible for the hazard which caused her fall. The appellant's assumptions and speculations are not sufficient to establish liability. The appellant also failed to present evidence that any of the appellee's employees had actual knowledge of the hazard; or that the danger had existed for sufficient time to justify the inference of knowledge. The appellant testified that she did not see the plastic strips before she fell and did not know how they were on the ground prior to her fall. Given this dearth of evidence, the trial court did not err in granting the appellee's motion for summary judgment. The appellant's assignment of error is overruled. Judgment affirmed. - 7 - 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 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. Exceptions. DAVID T. MATIA, J., and ANN DYKE, J., CONCUR. JAMES D. SWEENEY CHIEF JUSTICE 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 of decision by the .