COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72826 JEANNE WILLIAMSON, ET Al. : : ACCELERATED DOCKET PLAINTIFFS-APPELLANTS : : JOURNAL ENTRY vs. : : AND WAL-MART STORES, INC. : : OPINION DEFENDANT-APPELLEE : : PER CURIAM DATE OF ANNOUNCEMENT OF DECISION: DECEMBER 24, 1997 CHARACTER OF PROCEEDING: Civil appeal from Court of Common Pleas, Lower Case No. CV-292130. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: ________________________________ APPEARANCES: For Plaintiffs-appellants: Murray Richelson, Esq. David A. Katz Co., L.P.A. 842 Terminal Tower Cleveland, Ohio 44113 For Defendant-appellee: John R. Scott, Esq. Brian D. Sullivan, Esq. Reminger & Reminger Co., L.P.A. 113 St. Clair Building Cleveland, Ohio 44114 PER CURIAM: An accelerated appeal is authorized pursuant to App.R. 11.1 and Loc.R. 25. The purpose of an accelerated docket is to allow an -2- appellate court to render a brief and conclusory decision. Crawford v. Eastland Shopping Mall Assn. (1983), 11 Ohio App.3d 158; App.R. 11.1(E). Plaintiffs-appellants Jeanne and Phillip Williamson, husband and wife, appeal from the granting of summary judgment in favor of defendant-appellee-movant Wal-Mart Stores, Inc. ( Wal-Mart ), d.b.a. Sam's Club. Appellate oral argument has been waived by the parties so the appeal is heard on the record and the briefs. For the reasons adduced below, we affirm. A review of the record on appeal indicates that Wal-Mart operates a Sam's Club wholesale merchandise store located at 23300 Broadway Avenue, Bedford, Ohio. On Saturday afternoon, June 25, 1994, Mrs. Williamson slipped and fell while traversing a sidewalk which ran along the front exterior of the store to the main entrance doors. This sidewalk is covered by a canopy which extends twenty feet from the doors. A metal railing extends from the doors to the end of the canopy, blocking anyone from entering or leaving except by passing the end of the canopy. At the time of the accident, rain was falling and Mrs. Williamson, who was not carrying any packages and was not pushing a shopping cart, was exiting the store. Mr. Williamson had preceded his wife from the store to unlock the doors on their car in the parking lot. The areas of the ground near the edges of the canopy were wet. Mrs. Williamson stated in her deposition, at 40, that she fell at a point where she was just about to leave from under the end of the canopy. Both plaintiffs had unobstructed views of the path, but -3- saw no obvious obstructions or impediments. After the fall under the canopy, Mr. Williamson assisted his wife and felt the ground where she had fallen. He felt a substance, but could not identify it. He believed that this substance had become wet because of the rain. Mr. Ronald Baraona's chemical expert's report, which is attached to the plaintiffs' brief in opposition to summary judgment, identifies a substance found on Mrs. Williamson's clothing as being varnish. Wal-Mart filed its motion for summary judgment on April 25, 1997. Attached to Wal-Mart's motion were excerpts from the deposition testimony of both plaintiffs and copies of case law relied upon by Wal-Mart. On May 22, 1997, plaintiffs filed their brief in opposition to summary judgment. Attached to the brief in opposition were color photographs of the canopied entrance to the store, the chemical expert's report identifying a substance found on the wife's clothing as varnish, copies of case law, and a copy of the deposition of Mr. Donald Setele1. On June 4, 1997, Wal-Mart filed a reply to plaintiffs' brief in opposition to summary judgment. On June 17, 1997, the trial court granted summary judgment without explanation using a half-sheet status form entry. This timely appeal presents the following lone assignment of error: THE TRIAL COURT ERRED IN GRANTING APPELLEE'S MOTION FOR SUMMARY JUDGMENT. 1Mr. Setele worked at the store in question during 1991 through 1994, having left employment at that store approximately one month after the date of the accident in question. Part of his duties at the store was to clean up spills. -4- The standard of review for a motion for summary judgment was generally stated in State ex rel. Zimmerman v. Tompkins (1996), 75 Ohio St.3d 447, 448-449, as follows: 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 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, 628 N.E.2d 1377, 1379, citing Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327, 4 O.O.3d 466, 472, 364 N.E.2d 267, 274. * * * Summary judgment is appropriate where the nonmoving party does not produce evidence on any issue for which that party bears the burden of production at trial. Wing v. Anchor Media, Ltd. of Texas (1991), 59 Ohio St.3d 108, 570 N.E.2d 1095, paragraph three of the syllabus; State ex rel. Morley v. Lordi (1995), 72 Ohio St.3d 510, 513, 651 N.E.2d 937, 940. When a motion for summary judgment is made and supported as provided in Civ.R. 56, the nonmoving party may not rest on the mere allegations of his pleading, but his response, by affidavit or as otherwise provided in Civ.R. 56, must set forth specific facts showing that there is a genuine triable issue. Civ.R. 56(E); Jackson v. Alert Fire & Safety Equip., Inc. (1991), 58 Ohio St.3d 48, 52, 567 N.E.2d 1027, 1031. (Emphasis added.) Also see Celotex v. Catrett (1986), 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265. Subsequent to Tompkins, in the recent case of Kulch v. Structural Fibers, Inc. (1997), 78 Ohio St.3d 134, 144-145, the Ohio Supreme Court limited the third paragraph of the syllabus of -5- Wing, supra, by reasserting reliance on Dresher v. Burt (1996), 75 Ohio St.3d 280, 293: [A] party seeking summary judgment, on the ground that the nonmoving party cannot prove its case, bears the initial burden of informing the trial court of the basis for the motion, and identifying those portions of the record that demonstrate the absence of a genuine issue of material fact on the essential element(s) of the nonmoving party's claims. The moving party cannot discharge its initial burden under Civ.R. 56 simply by making a conclusory assertion that the nonmoving party has no evidence to prove its case. Rather, the moving party must be able to specifically point to some evidence of the type listed in Civ.R. 56(C) which affirmatively demonstrates that the nonmoving party has no evidence to support the nonmoving party's claims. If the moving party fails to satisfy its initial burden, the motion for summary judgment must be denied. However, if the moving party has satisfied its initial burden, the nonmoving party then has a reciprocal burden outlined in Civ.R. 56(E) to set forth specific facts showing there is a genuine issue for trial and, if the nonmovant does not so respond, summary judgment, if appropriate, shall be entered against the nonmoving party. (Footnote omitted; Italicization in original.) In our review of the motion for summary judgment, we are also mindful that such review is de novo. Koos v. Cent. Ohio Cellular, Inc. (1994), 94 Ohio Ap.3d 579. The standard which applies to slip-and-fall cases involving business invitees was stated by this court in Combs v. First Nat'l Supermarkets, Inc.(Cuyahoga, 1995), 105 Ohio App.3d 27, 29-30, 663 N.E.2d 669: 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: -6- 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 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 period of time to enable them in the exercise of ordinary care to remove it or to warn customers about it. Also Smith v. Finast Supermarkets, Inc. (June 12, 1997), Cuyahoga App. No. 71247, unreported, at 2, 1997 WL 321496; Corrado v. First Nat'l Supermarkets (May 2, 1996), Cuyahoga App. No. 69362, unreported, at 6-7, 1996 Ohio App. LEXIS 1797. -7- In the case sub judice, the prime issue is whether Wal-Mart had actual or constructive notice of the hazard. In support of this element, appellants argue that actual notice was demonstrated during the deposition testimony of Mr. Setele that store personnel would be called upon to clean up a spilled item a couple of times a day. See Setele deposition, at 18. Apart from this statement not referencing a known problem with spills at the location where Mrs. Williamson fell, cf. Vernasardakis v. Thriftway, Inc. (May 7, 1997), Hamilton App. No. C-960713, unreported, 1997 WL 224905, Mr. Setele did not testify, contrary to the argument of appellant, that his fellow maintenance workers were constantly in the area of the fall cleaning up spills. See Appellants brief, at 9. Further, the fact that a Wal-Mart employee, who arrived at the scene of the fall after the fall had taken place, stated in the presence of Mrs. Williamson that she slipped on that oil, See Mrs. Williamson deposition, at 45-46, does not demonstrate, contrary to appellants' assertion, Wal-Mart's prior knowledge of the presence of the hazard. See Appellants' brief, at 9. This observation merely indicates that the employee could see the hazard which Mrs. Williamson slipped on. Appellants argument that constructive notice was demonstrated is equally without merit. See Appellants' brief, at 9-10. Appellants argue that because Mr. Setele testified Wal-Mart employees are constantly present near the front doors of the store retrieving carts from the parking lot and assisting patrons, see Setele deposition, at 13-15, that this constitutes constructive -8- notice because the employees should have been aware of the existence of the hazard had they exercised ordinary care. See Anaple, supra, at paragraph one of the syllabus, part 2(b). The problem with appellants' reliance on this section of Anaple is that no one in this case, particularly Wal-Mart, knows how long the hazard existed at the location where Mrs. Williamson fell, or whether the hazard was created by a negligent act of Wal-Mart pursuant to part 2(a) of the first paragraph of Anaple's syllabus. Absent such knowledge of the potential hazard, the issue of constructive notice under Anaple has not been demonstrated. By failing to demonstrate notice of the hazard, the court properly granted summary judgment. Assignment overruled. Judgment affirmed. -9- 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. ______________________________ JAMES D. SWEENEY, C.J. ______________________________ TERRENCE O'DONNELL, J. ______________________________ DIANE KARPINSKI, J. N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 25(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 .