COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA No. 73215 GIROLMA ROSE DEDITCH : : JOURNAL ENTRY Plaintiff-appellant : : AND vs. : : OPINION SILVERMAN BROTHERS, INC. : : Defendant-appellee : : : DATE OF ANNOUNCEMENT : JULY 30, 1998 OF DECISION : : CHARACTER OF PROCEEDINGS : Civil appeal from : Court of Common Pleas : Case No. CV-307790 : JUDGMENT : AFFIRMED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellant: For defendant-appellee: RUSSELL A. MOORHEAD, ESQ. 848 Rockefeller Bldg. Cleveland, OH 44113 JOHANNA M. SFISKO, ESQ. 1100 Illuminating Bldg. 55 Public Square Cleveland, OH 44113 -2- JOHN T. PATTON, J.: Plaintiff Girolma Deditch injured herself when she slipped and fell on spilled liquid dish washing detergent on the sales floor of a defendant Silverman Brothers, Inc. ( Silverman's ) store. The court granted Silverman's summary judgment, finding the evidentiary materials failed to establish the existence of any material fact and that Silverman's was entitled to judgment as a matter of law. The assignments of error collectively challenge that ruling. An owner or operator of a store owes its 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, 203. A business invitee must show in a slip and fall negligence case against a proprietor that (1) the proprietor caused the hazard; or (2) the proprietor or one of its employees had actual knowledge of the hazard and neglected to give adequate notice of its presence or to remove it promptly; or (3) the danger presented by the hazard had existed for a reasonably sufficient time to justify the inference that the failure to warn against it or remove it was attributable to a lack of ordinary care. Anaple v. Standard Oil Co. (1955), 162 Ohio St. 537, paragraph one of the syllabus; Johnson v. Wagner Provision Co. (1943), 141 Ohio St. 584, 589; Combs v. First Natl. Supermarkets, Inc. (1995), 105 Ohio App.3d 27. A plaintiff may establish constructive notice of a substance on a floor by showing the length -3- of time the substance had been on floor. Presley v. Norwood (1973), 36 Ohio St. 2d 29, 32; Combs, supra, at 30. Plaintiff conceded she could not say that Silverman's caused the liquid detergent to spill, and she further conceded that Silverman's had no actual knowledge of the spill. Instead, she set forth two bases for liability (1) that the liquid detergent had been on the floor for such a period of time that Silverman's failure to remove it demonstrated a lack of ordinary care and (2) that the size of the spill was so great that only the failure of ordinary care would have prevented Silverman's from discovering it. We find plaintiff did not create an issue of material fact on how long the liquid detergent had been on the sales floor. In her deposition, plaintiff gave the following testimony: Q. Do you know how [the spill] got there? A. No, and even the manager didn't now [sic] how it got there, and they were arguing. Q. Do you know if it was there for a minute, 30 seconds or 20 minutes? You have no idea? A. I could never say, no, because all I know is I fell in it. Q. And your son doesn't know? A. I'm thinking by surmising, because the way the manager was so frustrated, it couldn't have been there 30 seconds or even a minute because of the way it was spreading on the floor. It looks like it, I'll bet you it was there over 10 minutes. Q. But you don't know for sure? A. For sure, right. Q. You can't testify -4- A. No. Q. as to how it got there? A. Right. Q. Or how long it was there? A. No, because I wasn't there when it was spilled. Q. And you can't testify to how long it was there? A. No. By her own admission, plaintiff could not establish the length of time the liquid detergent had been on the sales floor. She attempted to guess that it had been on the floor for ten minutes based on the size of the spill, but that guess did not establish an issue of material fact. An inference of negligence does not arise from mere guess, speculation, or wishful thinking, but rather can arise only upon proof of some fact from which such inference can reasonably be drawn. Parras v. Standard Oil Co. (1953), 160 Ohio St. 315, paragraph two of the syllabus. This case is distinguishable from Combs v. First Natl. Supermarkets, Inc., supra, in which we held that a jury question existed on whether a store breached a duty of care when it failed to clean a spill that had been on the sales floor for fifteen to twenty minutes. In Combs, a disinterested shopper swore that he saw the spill on the floor when he arrived in the store and learned that Combs fell in that spill fifteen to twenty minutes later. We found this evidence sufficient to establish a material issue of fact on whether the -5- store had constructive notice. Combs, 105 Ohio App.3d at 30-31. Here, plaintiff can only engage in conjecture and speculation. We reject plaintiff's argument that the size of the spill was so great as to give Silverman's constructive notice of the existence of the spill. In order for plaintiff to show a material issue of fact on this point, she must necessarily overcome the counter-intuitive aspect of her argument if the spill was big enough that Silverman's should be charged with constructive notice of its existence, shouldn't the spill have been big enough that plaintiff would see it and exercise reasonable caution to prevent her fall? In her deposition, plaintiff made the following statement: [The spill] was huge. I can't understand how no one didn't see it, because there was a lot of people in the store, you know. It was like a moderate busy day in the store, so, either someone was just ignorant and didn't, you know, call an attendant and say, hey, I accidentally spilled this. I don't know what the situation was. All I know, I was the victim. Had the store been as crowded as plaintiff claimed, and had the spill been as large as she claimed, and had the spill been on the floor for the length of time she claimed, it stands to reason that someone anyone would have noticed it. Plaintiff herself found this lack of discovery puzzling. If we accept plaintiff's assertion that the spill had been huge, she cannot show an issue of material fact since she is charged with discovering and protecting herself from dangers that are open and obvious. Ralfo -6- v. Losantiville Country Club (1973), 34 Ohio St.2d 1; Sidle v. Humphrey (1968), 13 Ohio St.2d 45. Likewise, if we accept plaintiff's assertion that she could not accurately state the length of time the spill had been on the sales floor, it would show that the spill had not been on the floor for a sufficient time for us to infer the Silverman's should have discovered it. Finally, if we accept plaintiff's assertion that a significant number of shoppers were in the store at the time, none of whom appeared to notice the spill, we must conclude that the spill had not been so obvious as to put Silverman's on notice of its existence. Under -7- any of these scenarios, plaintiff's argument fails. The assigned error is overruled. Judgment affirmed. -8- 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 direct ing the 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. DIANE KARPINSKI, P.J. TIMOTHY E. MCMONAGLE, J., CONCUR. JUDGE JOHN T. PATTON 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 .