COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72208 RICHARD J. TOTH : : JOURNAL ENTRY PLAINTIFF-APPELLEE : : AND v. : : OPINION RISER FOODS, INC. : : DEFENDANT-APPELLANT : : DATE OF ANNOUNCEMENT OF DECISION: APRIL 23, 1998 CHARACTER OF PROCEEDING: Civil appeal from Court of Common Pleas, Case No. CV-263035. JUDGMENT: AFFIRMED IN PART, REVERSED IN PART, AND REMANDED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-appellee: Samuel V. Butcher, Esq. Matthew T. Brady, Esq. 668 Euclid Avenue, Suite 850 Cleveland, Ohio 44114-3060 For Defendant-appellant: Roger H. Williams, Esq. Matthew J. Grimm, Esq. Williams & Sennett Co., L.P.A. 2241 Pinnacle Parkway Twinsburg, Ohio 44087-2367 -2- JAMES D. SWEENEY, J.: Defendant-appellant Riser Foods, Inc. appeals alleged errors which occurred in this premises liability negligence action. For the reasons adduced below, we affirm in part and reverse in part, and remand for a new trial. A review of the record on appeal indicates that plaintiff- appellee Richard J. Toth (then 64 years of age) was shopping for pork chops in the company of his elderly mother (then 91 years of age) at appellant's Rego's Stop-N-Shop Supermarket located at 7200 Brookpark Road on Friday, December 20, 1991, at approximately 10:40 a.m. At that time, Mr. Toth slipped and fell in a puddle of water in the general vicinity of an ice cream freezer unit near a corner of the aisle intersecting the packaged meat products area in the rear of the store. As he fell onto the hard floor surface, Mr. Toth performed a maneuver commonly called the splits, where one leg is extended in front of the person and the other leg extends to the rear of the person, causing injury to his right knee and lower back. After being assisted from the floor by a patron of the store (Ms. Lois Wright), appellant, his trousers soaked with water up to the belt line, reported the incident to the manager's office at the urging of a clerk in the meat department, Ms. Silon. At the manager's office, appellant spoke with Mr. Richard Clements and the store manager, Mr. Steve Ondercik, who took down the accident report on a pad of yellow legal paper. After explaining to these store employees what had happened, Mr. Ondercik, according to the appellant, asked Mr. Clements why the backing-up problem with the -3- drainage from the freezer unit had not been taken care of. (R. 299, 300.) Mr. Toth also testified that after the fall, he observed a folded-up caution sign, a water bucket and mop against a wall near the spot of the puddle. Mr. Ondercik, the store manager at the time of the accident, testified that refrigeration units at the store do experience clogged drains from time-to-time which causes water to accumulate and that service calls are made to remedy the problem. The store also utilizes buckets and mops to clean up spills and puddles, and that these clean-up items are typically left located near the meat cases for ready access by store personnel. The witness stated that the bucket and mop seen by the plaintiff were probably placed there by one of the clerks in the meat department. The witness, who had no knowledge of any accident report of the incident, also could not remember the incident involving the plaintiff or whether there were problems with the refrigeration unit drains on that particular day. Mr. Clements, an assistant manager at the store on the date of the incident, testified that there were recurring problems with the drains on the refrigeration units backing-up and causing standing puddles of water to accumulate in the aisles, which drain problem required frequent service calls to a local repair service, Hattenbach Company. Mr. Clements further testified that he believed the store was scheduled to be remodeled in the future, which was the reason why the store kept repairing the refrigeration units instead of having the problem units replaced. The witness also stated that he had no recollection of the incident involving -4- the plaintiff or with any problems with clogged drains in the refrigeration units on that particular day. Finally, the witness stated that the store did not employ any set schedule for personnel to inspect the store for hazards or spills during the day; instead, the store would be inspected for hazard at the beginning and end of the work day and any spills or messes in the interim would be ordered to be cleaned up as soon as possible after they were detected. Mr. Terry Hattenbach, the owner of the repair service, testified that his company received service calls on the refrigeration units at the store approximately fifty-one times in the six months prior to the appellant's fall. On December 20, 1991, the date of the fall, the service company received a service call from the store at approximately 10:30 a.m. (approximately ten minutes prior to the fall), and responded to the call at approximately 11:00 a.m. (approximately twenty minutes after the fall). The serviceman was at the store from approximately 11:00 a.m. to 3:00 p.m. that day and identified the problem with the ice cream freezer unit near the meat department as a blocked drain which was located beneath the cooling coil of the freezer. The serviceman noticed that the fan on the unit, which circulates air through the cooling coil, had stopped due to an excessive amount of ice build-up on the cooling coils. This caused the cooling coil and fan blades to ice up even more, which further caused the drain to clog and puddles of water to form as the ice melted during periodic defrosting cycles during the day. -5- Ms. Wright testified that she observed the reflection of water on the floor at the location of the fall several minutes prior to the fall and resumed shopping. This standing puddle, according to the witness, was approximately 12 to 14 inches in size and was located in the aisle between the deli meat area and the packaged meat area, in front of a door leading to the butchers' area. There were no cart tracks or shoe prints observed leading to or from the puddle according to the witness when she first observed the hazard. Several minutes after noticing the puddle, she observed plaintiff on the floor in the area of the door and assisted him to his feet. The witness also testified that it was a snowy day and that the store showed signs of being remodeled, but the puddle of water did not appear to be caused by melted water from someone's boots because the puddle was too large in size. Ms. Karen Silon, a clerk in the meat department on the date of the accident, had no recollection of the accident or problems with the refrigeration equipment on the date of the accident. However, the witness did state that the store had a policy of reporting accidents and preserving the accident reports. The defense put on no evidence during its case-in-chief. At the close of all evidence, the court directed a verdict in favor of the plaintiff-appellee on the issues of negligence and proximate cause, and submitted the issues of contributory negligence on the part of plaintiff and damages to the jury. (R. 392-394, 400-401.) The jury returned a verdict in favor of the plaintiff in the amount of $28,000.00, and further determined that plaintiff was 15% -6- negligent. Therefore, the defendant was found liable for $23,800.00 in damages after accounting for the comparative negligence of plaintiff. Subsequent to the verdict, the court denied the defendant's motion for a new trial/JNOV. This appeal followed presenting three assignments of error for review. I THE TRIAL COURT HEREIN COMMITTED PREJUDICIAL ERROR IN DIRECTING A VERDICT ON THE ISSUE OF DEFENDANT-APPELLANT'S NEGLIGENCE AS WELL AS THE ISSUE OF PROXIMATE CAUSE. Civ.R. 50(A)(4) provides: When a motion for directed verdict has been properly made, and the trial court, after construing the evidence most strongly in favor of the party against whom the motion is directed, finds that upon any determinative issue reasonable minds could come to but one conclusion upon the evidence submitted and that conclusion is adverse to such party, the court shall sustain the motion and direct a verdict for the moving party as to that issue. Recently, this court stated the following in relation to a directed verdict determination: It is the duty of the trial court to submit an essential issue to the jury when there is sufficient evidence, if believed, relating to that issue to permit reasonable minds to reach different conclusions on that issue. O'Day v. Webb (1972), 29 Ohio St.2d 215, 58 O.O.2d 424, 280 N.E.2d 896. When a trial court considers a motion for directed verdict, it must determine not whether one version of the facts presented is more persuasive than another but rather whether the trier of fact could reach only one result under the theories of law presented in the complaint. Eldridge v. Firestone Tire & Rubber Co. (1985), 24 Ohio App.3d 94, 24 OBR 164, 493 N.E.2d 293. A motion for directed verdict tests the legal sufficiency of the -7- evidence. Id. The trial court may not weigh the evidence or try the credibility of witnesses, but must give to the party opposing the motion the benefit of all reasonable inferences from the evidence. Id. The reasonable minds test of Civ.R. 50(A)(4) requires the court only to determine whether there is any evidence of substantial probative value in support of the nonmoving party's claim. Joyce v. Gen. Motors Corp. (1990), 49 Ohio St.3d 93, 551 N.E.2d 172. Zavasnik v. Lyons Transp. Lines, Inc. (Cuyahoga, 1996), 115 Ohio App.3d 374, 378; also see Wagner v. Roche Laboratories (1996), 77 Ohio St.3d 116, 119-120. At the time of his accident herein, it is not disputed that plaintiff was a business invitee. A shopkeeper owes business invitees a duty of ordinary care in maintaining the premises in a reasonably safe condition so that its customers are not unnecessarily and unreasonably exposed to danger. Paschal v. Rite-Aid Pharmacy, Inc. (1985), 18 Ohio St.3d 203. 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 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. (Cuyahoga, 1995), 105 Ohio App.3d 27, 29, citing Johnson v. Wagner Provision Co. -8- (1943), 141 Ohio St. 584, 589. See also Anaple v. Standard Oil Co. (1955), 162 Ohio St. 537, paragraph one of the syllabus, where the Supreme Court set forth the burden the plaintiff must prove to establish liability in a premises liability case such as this: 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 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 at bar, there is little doubt that the puddle of water which plaintiff slipped on constitutes a hazard to a business invitee such as the plaintiff herein. Equally clear is that no one knows how long the puddle was on the floor prior to being observed by Ms. Wright shortly before the time of the fall or how the water originally came to be deposited on the floor. It is the plaintiff's belief that the water came from the problematic ice cream freezer unit (which was across the aisle opposite the door to the butchers' area) or the water bucket (which was found resting against a wall near the location of the accident). No one -9- associated with the grocery store (Mr. Ondercik, Mr. Clements, Ms. Silon) had a recollection of the incident involving the plaintiff or the condition of the refrigeration units on that particular day. The only evidence of knowledge of the hazard by the defendant is demonstrated inferentially by: (1) the testimony of the plaintiff, where he stated that when he informed Messers. Ondercik and Clements of the accident, Mr. Ondercik asked Mr. Clements why that problem of the backup drain wasn't taken care of. (R. 299, 300.); and, (2) the fact that a service call was made by someone at the store regarding the ice cream freezer unit approximately ten minutes prior to the accident. Despite these inferences, reasonable minds could come to more than one conclusion as to the source of the water puddle since there were no tracks leading to or from the puddle. Also, the evidence demonstrated that the ice cream freezer unit with the backed-up drain problem was located some distance across the aisle from the location of the puddle and there was no tell-tale stream of water leading to the puddle from the freezer unit. Similarly, the water bucket and mop were observed up against a wall several feet from the puddle and there was no stream of water leading to the puddle from the bucket and mop. Tellingly, there was no evidence to suggest that the bucket contained any water at all at the time of the fall. Because reasonable minds, after viewing the evidence in a light most favorable to the defendant, could come to different conclusions as to the source of the puddle and the knowledge of the store personnel as to the existence of that particular puddle, we -10- conclude that the trial court erred in granting a directed verdict on the issues of negligence and proximate cause in favor of the plaintiff. The first assignment of error is affirmed. II THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN OVER BOTH DEFENDANT-APPELLANT'S AND PLAINTIFF-APPELLEE'S OBJECTION IT FAILED TO PROVIDE GENERAL VERDICT FORMS TO THE JURY. Having affirmed the first assignment of error, the argument herein concerning alleged irregularities with the verdict forms is now moot and need not be addressed. See App.R. 12(A)(1)(c). The second assignment is overruled as moot. III THE TRIAL COURT ERRED IN NOT GRANTING DEFENDANT-APPELLANT'S MOTION FOR JNOV OR IN THE ALTERNATIVE FOR A NEW TRIAL. In Posin v. A.B.C. Motor Court Hotel (1976), 45 Ohio St.2d 271, 275, the court stated: The test to be applied by a trial court in ruling on a motion for judgment notwithstanding the verdict is the same test to be applied on a motion for directed verdict. The evidence adduced at trial and the facts established by admissions in the pleadings and in the record must be construed most strongly in favor of the party against whom the motion is made, and, where there is substantial evidence to support his side of the case, upon which reasonable minds may reach different conclusions, the motion must be denied. Neither the weight of the evidence nor the credibility of the witnesses is for the court's determination in ruling upon either of the above motions. (Citations omitted.) -11- A motion for judgment notwithstanding the verdict is a question of law, not a question of fact. See O'Day v. Webb (1972), 29 Ohio St.2d 215; Altmann v. Southwyck AMC-Jeep-Renault, Inc. (1991), 76 Ohio App.3d 92, 95. In its motion for JNOV made pursuant to Civ.R. 50(B), defendant-appellant argued that the store was not negligent and had no actual or constructive notice of the hazard based on the standards enunciated in Johnson v. Wagner Provision Co., supra, and Anaple v. Standard Oil Co., supra. Construing the evidence in plaintiff's favor, it is clear that the puddle was on the floor for at least several minutes prior to the accident and that the alleged statement of Mr. Ondercik regarding the repair efforts of the drain on the freezer unit is some inference of knowledge of the hazard. Additional knowledge is also inferentially demonstrated by the presence of cleaning equipment near the scene of the accident at the time of the fall and the fact that the service company was called approximately ten minutes before the accident to repair the ice cream freezer. We conclude that the trial court did not err in denying the motion for JNOV. The alternatively raised motion for new trial presses for relief under Civ.R. 59(A)(4) [excessive damages awarded], (6)-(7) [monetary verdict not sustained by the weight of the evidence, and the verdict of negligence and damages being contrary to law] and (9) [error of law at trial in not granting a directed verdict in favor of the defendant]. By virtue of the affirmation of the first assignment of error above, which necessarily voids the trial and -12- verdict in this matter, the arguments relative to Civ.R. 59(A)(4), (6) - (7) and (9) are moot. The third assignment of error is overruled. Judgment affirmed in part, reversed in part, and remanded. -13- This cause is affirmed in part and reversed in part. The court finds there were reasonable grounds for this appeal. It is, therefore, considered that said appellant(s) and appellee(s) each pay one-half of the costs herein. It is ordered that a special mandate be sent to said 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. JAMES M. PORTER, P.J., CONCURS; TERRENCE O'DONNELL, J., DISSENTS WITHOUT OPINION. ______________________________ JAMES D. SWEENEY 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 of decision by the .