COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA No. 73238 MEL LEWIS, ET AL. : : JOURNAL ENTRY Plaintiff-appellants: : AND vs. : : OPINION NEWBURG SUPERMARKET : : Defendant-appellee : : : DATE OF ANNOUNCEMENT : SEPTEMBER 24, 1998 OF DECISION : : CHARACTER OF PROCEEDINGS : Civil appeal from : Court of Common Pleas : Case No. CV-335031 : JUDGMENT : AFFIRMED IN PART, REVERSED IN PART AND REMANDED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellants For defendant-appellee: MICHAEL F. DADISMAN, ESQ. Cleveland, OH 44115 Broadview Professional Bldg. 5455 Broadview Road Parma, OH 44134 JOSEPH W. PAPPALARDO, ESQ. TIMOTHY P. WHITFORD, ESQ. Gallagher, Sharp, Fulton & Norman 7th Floor, Bulkley Bldg. 1501 Euclid Avenue -2- JOHN T. PATTON, J.: Plaintiff-appellant Mel Lewis ( plaintiff ) appeals the granting of summary judgment in favor of defendant-appellee Newburg Supermarket ( supermarket ). Plaintiff claims the trial court erred by finding there were no genuine issues of material fact regarding whether the supermarket breached a duty of care owed to him and whether the shopping carts stored in front of the elec- tronic entrance door were the proximate cause of his injuries. Plaintiff entered the supermarket on December 17, 1994 at approximately6:00 p.m. accompanied by a friend. After purchasing several items, plaintiff and friend proceeded to a cash register. While the cashier was ringing up the purchase, plaintiff pushed his empty shopping cart back to the storage cart area located inside the supermarket to the left of the entrance door. The entrance door is an electric door which opens automatically. Just as plaintiff placed the cart in the storage area, a customer stepped on the door pad to enter the store. The door swung open and struck plaintiff on his wrist. As a result, his wrist was pinned against a metal bar which resulted in plaintiff suffering a fractured wrist. Subsequently, plaintiff filed and dismissed his original complaint. He re-filed the complaint alleging: (1) the supermar- ket negligently placed the shopping cart storage area in close proximity to the opening door, and (2) the force of the door striking his wrist was the result of the supermarket's negligence based on the doctrine of res ipsa loquitur. In response, the -3- supermarket filed its answer to the complaint, denying liability. Thereinafter, the supermarket filed a motion for summary judgment arguing it had no knowledge of any hazard created by the electronic door and therefore it was not negligent for not giving notice. In addition, the supermarket contended res ipsa loquitur was not applicable because the electronic door was not in its exclusive control and there was no evidence ordinary care was not observed. Plaintiff filed a motion in opposition to summary judgment but the trial court granted the supermarket's motion. Plaintiff timely filed his notice of appeal and now presents two assignments of error. Plaintiff's first assignment of error states as follows: THE TRIAL COURT ERRED IN FINDING THAT THE DEFENDANT- APPELLEE DID NOT BREACH ANY DUTY IT OWED THE PLAINTIFF- APPELLANT MEL LEWIS. Plaintiff argues the placement of the shopping carts adjacent to the electronic entranceway door, which is triggered by a third party, was the proximate cause of his injuries. He complains the owner and his employees were familiar with the layout of the store and as such had a continuing duty to inspect the shopping cart storage area to ensure that it would not fill to the point of being dangerously close to the entrance way electronic door. Further- more, plaintiff claims the supermarket did not meet its duty of care owed to him simply because it bought expensive state of the art safety equipment; i.e., the electronic door equipped with presence detectors. In addition, plaintiff maintains the affidavit and depositional testimony given by the president of the supermar- -4- ket is insufficient and conflicting regarding whether the elec- tronic door possessed a presence detector and whether it was serviced. In response, the supermarket argues plaintiff has no evidence that it breached its duty of care owed to him and it is not an insurer of plaintiff's safety as a customer on its premises. Also, the supermarket maintains the electronic doors were maintained for over a decade without incident, therefore it had no notice of any prior problems, and plaintiff has failed to come forward with any evidence that it had actual or constructive knowledge of a defect in the entrance doors. Under Civ.R. 56, summary judgment is appropriate when: (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. This court reviews the lower court's granting of summary judgment de novo. Brown v. Scioto Bd. of Commrs. (1993), 87 Ohio App.3d 46, 50. An appellate court reviewing the grant of summary judgment must follow the standards set forth in Civ.R. 56(C). The reviewing court evaluates the record *** in a light most favorable to the nonmoving party. *** The motion must be overruled if reasonable minds could find for the party opposing the motion. Sanders v. McFaul (1990), 71 Ohio App.3d 735, 741. -5- Actionable negligence requires the showing of a duty, the breach of that duty and an injury proximately resulting therefrom. Fed. Steel & Wire Corp. v. Ruhlin Constr. Co. (1989), 45 Ohio St.3d 171. Under the law of negligence, a defendant's duty to plaintiff depends upon the relationship between the parties and the foreseeability of injury to someone in plaintiff's position ***. Injury is foreseeable if a defendant knew or should have known that its act was likely to result in harm to someone ***. Simmers v. Bentley Constr. Co. (1992), 64 Ohio St.3d 642. It is a well established rule of law that in order to owe a duty of care, it is not necessary that the defendant foresee harm in the precise form in which it occurred. See Pavlides v. Niles Gun Show, Inc. (1994), 93 Ohio App.3d 46 (holding that an actor cannot necessarily avoid the imposition of a legal duty merely because he did not foresee the exact consequences of his actions). Rather, it is sufficient if defendant's action or inaction was likely to result in an injury to someone. Mudrich v. Std. Oil Co. (1950), 153 Ohio St. 31. The existence of a duty in an negligence action is generally a question of law for the court to determine. Mussivand v. David (1989), 45 Ohio St.3d 314. However, the breach of that duty, i.e., whether a defendant properly discharged his duty of care, is normally a question for the jury. Commerce & Industry Ins. Co. v. Toledo (1989), 45 Ohio St.3d 96, 98. -6- The determination of this appeal turns on whether (1) the supermarket owed plaintiff a duty and (2) whether it breached that duty through its action or inaction. Because plaintiff was a business invitee on the supermarket's premises, the supermarket owed him a duty to exercise reasonable care in keeping the premises in a safe condition and also to warn him of any latent or concealed perils of which it had knowledge or should have had knowledge. Anderson v. Ruoff (1995), 100 Ohio App.3d 601, 605. Perry v. Eastgreen Realty Company (1978), 53 Ohio St.2d 51, 52-53. Since the supermarket owed plaintiff a duty, the second issue is whether the supermarket breached that duty of care by storing the shopping carts too close to the electronic entrance door. Plaintiff's deposition testimony reveals while the cashier was ringing up his groceries he returned his empty shopping cart to the storage cart area located inside the store. This storage cart area was located six inches directly to the left of the electronic entrance door along the wall. Plaintiff stated another customer stepped on the pad activating the electronic door which opened into the storage cart area. The door pinned his wrist against a metal bar causing his hand to fracture. Plaintiff does not claim the electronic entrance door malfunctioned, rather he claims the supermarket negligently placed the shopping carts too close to the electronic entrance door. The supermarket attempts to negate this issue by arguing it had no notice the shopping carts were negligently stored because -7- there were no prior injuries involving cart storage. The president of the supermarket stated in his affidavit he had no knowledge of any prior accidents with the door and was not aware it had malfunctioned in any way prior to this incident. He also said he does not have personal knowledge if the shopping carts were stored as [plaintiff] claims since he never reported the incident to store personnel. There is no evidence of specific injuries or incidents resulting from the storage of the shopping carts which would notify the supermarket that an unsafe condition existed. However, the lack of notice of past injuries is not determinative of breaching a duty of care. Pavlides, supra. The supermarket and its agents or employees were in a better position to anticipate whether an injury was likely to result from the storage of the shopping carts. The supermarket president has been in the business for over twenty years, his employees are at the store every day, and the storage of shopping carts is a routine responsibility of the supermarket. In addition, storing the shopping carts within six to twelve inches of the electronic door invites the ordinary person who is shopping to cross the path of the electronic door while returning his or her cart. Plaintiff had no other option but to return his cart to the storage area located by the electronic entrance door. Based on the foregoing, we find after viewing the evidence in a light most favorable to the non-movant, there is a genuine issue of material fact regarding whether the supermarket breached its -8- duty of care to plaintiff by storing the shopping carts too close to the electronic entrance door. Thus, the trial court erred in granting summary judgment in favor of the supermarket and plain- tiff's first assignment of error is sustained. Defendant's second assignment of error states as follows: THE TRIAL COURT ERRED IN FINDING THAT THERE WERE NO GENUINE ISSUES OF FACT AS TO WHETHER THE POSITIONING OF THE DEFENDANT-APPELLEE'S SHOPPING CARTS, STORED DIRECTLY IN THE PATH OF THE DEFENDANT-APPELLEE'S ELECTRONIC ENTRANCE WAY DOOR, WAS THE PROXIMATE CAUSE OF PLAINTIFF- APPELLANT'S INJURIES. In the heading of this assignment of error plaintiff does not raise the issue of res ipsa loquitur but he narrows his argument and subsequently focuses on res ipsa loquitur.1 Nevertheless, we will address this issue. Plaintiff argues the doctrine of res ipsa loquitur applies in the present case because the cause of his injury was the failure of the sensing device in the door and there had been no evidence presented the door even has a sensing device. In support of this contention, plaintiff cites to the deposition testimony of the supermarket's president where he stated he could not remember if the door had a sensing device which prohibits it from opening. Plus, he could not remember if the door had been serviced or if the supermarket was in possession of any brochures about the operation or maintenance of the door. 1Pursuant to App.R. 12(A)(1)(b), we must determine an appeal on its merits on the assignments of error. Plaintiff's head note in the second assignment of error does not contain language indicating res ipsa loquitur. -9- The supermarket counter-argues the doctrine of res ipsa loquitur is inapplicable because the electronic door was not under its exclusive control at the time of the incident but rather it was located in a public area traveled by patrons entering and exiting the store. Also, the supermarket claims plaintiff adduced no evidence to show his injury occurred under such circumstances that in the ordinary course of events would not have occurred if ordinary care had been exercised. Res ipsa loquitur is a doctrine that shifts the burden of proof of negligence when the facts pertaining to the existence of negligence are exclusively within the knowledge of the defendant because of the defendant's exclusive control of the environment. Kemper v. Builder's Square, Inc. (1996), 109 Ohio App.3d 127, 137. To warrant application of the doctrine a plaintiff must adduce evidence in support of two conclusions: (1) the instrumentality causing the injury was, at the time of the injury, or at the time of the creation of the condition causing the injury, under the exclusive management and control of the defendant; and (2) the injury occurred under such circumstances that in the ordinary course of events it would not have occurred if ordinary care had been observed. Id. at 138. First, plaintiff does not establish the elements of res ipsa loquitur as applied to the electronic entrance door or cart storage area. The electronic door is the entrance to the supermarket. The supermarket is frequented by the general public with people entering the store throughout the day. The storage cart area is -10- also frequented by people taking carts out and returning carts. Thus the electronic door and cart storage area are located in a public area with many people using them, thereby eliminating any exclusive control the supermarket may have had on them. See Brown v. University Hospital (June 7, 1990), Cuyahoga App. No. 57101 (chair located in public area held not to be under the exclusive control of defendant). Regarding the second element, plaintiff does not adduce any evidence which establishes that under the circumstances had ordinary care been observed the injury would not have occurred. Plaintiff does not submit any evidence which establishes the supermarket did not observe ordinary care regarding the care, maintenance, or operation of the door. The president of the supermarket stated in his affidavit there were electronic sensors in the door and there had never been an accident involving the door. Although he was uncertain regarding the maintenance of the door and how the sensing device operates, this can be attributed to the fact that there was never a mechanical problem with either the door or sensing device and thus there was no need to obtain this information. Lastly, res ipsa loquitur is not applicable to the instant case because this case involves simple negligence. Questions regarding the operation and maintenance of the sensing device and electronic door are merely red herrings. The seminal issue is whether the supermarket negligently placed the shopping carts too -11- close to the electronic entrance door thereby proximately causing plaintiff's injuries. Based on the foregoing, we find there are no genuine issues of material fact regarding application of the doctrine of res ipsa loquitur in the present case. Accordingly, the trial court did not err in granting summary judgment in favor of the supermarket regarding res ipsa loquitur. Plaintiff's second assignment of error is overruled. Judgment affirmed in part, reversed in part and remanded. -12- It is ordered that appellee and appellants share equally the 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 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 .