COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73527 LESLIE OUSLEY, JR., : : Plaintiff-Appellant : JOURNAL ENTRY : and vs. : OPINION : FIRST NATIONAL SUPERMARKETS, : : Defendant-Appellee : DATE OF ANNOUNCEMENT OF DECISION : OCTOBER 29, 1998 CHARACTER OF PROCEEDING: : Civil appeal from : Common Pleas Court : Case No. 319407 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellant: Michael L. Wolpert JEROME SILVER & ASSOCIATES 3421 Prospect Avenue Cleveland, Ohio 44115 For defendant-appellee: Jan L. Roller DAVIS & YOUNG 1700 Midland Building 101 Prospect Avenue Cleveland, Ohio 44115-1027 -2- NAHRA, J.: Appellant, Leslie Ousley, Jr., appeals the trial court's grant of a directed verdict in favor of appellee, First National Supermarkets, in his case against appellee for negligence. Appellant alleged that appellee was negligent in causing or allowing to remain a condition in its Finast grocery store which caused appellant to slip and fall and sustain injuries. At trial, appellant presented three witnesses: Catrina Patterson, a nurse who was a patron at the store; appellant, and Gerald Uebbing, the store manager. Catrina Patterson testified that she was shopping in the store, heard someone call for help, and responded. She saw appellant being helped up from the floor by an employee, that a large part of the aisle was wet, and that appellant's hand and arm were bleeding. She stated that she helped move appellant into an upright position onto a nearby four-wheeled cart and then administered first aid until paramedics arrived. Appellant testified that he purchased catfish from the deli counter, picked up a bottle of apple juice, and went to the frozen food aisle. He stated that he turned the corner into the aisle, took two or three steps, slipped, and fell forward onto his hands and knees. He also testified as to the extent of his injuries. On cross-examination he stated that he saw a liquid on the floor as he fell. Appellant had testified at his deposition that he did not see anything on the floor before he fell. He further testified at -3- trial that he saw black marks on the floor, marks that he believed came from the cart being moved through liquid on the floor. Gerald Uebbing testified that he arrived at the area where appellant fell, saw that a six-to-seven foot area was wet from the bottle of apple juice that broke when appellant fell, and believed that the only liquid on the floor was the apple juice. He also testified that the store had periodic checks of the floor, that the entire store was swept every two hours, and that he personally swept the area fifteen minutes prior to appellant's fall. At the close of appellant's case, the court granted defendant's motion for a directed verdict. I. Appellant's assignments of error are interrelated and will be addressed concurrently. The assignments of error read: I. THE TRIAL COURT COMMITTED ERROR IN IGNORING THE STANDARD AGAINST GRANTING A DIRECTED VERDICT. II. EVIDENCE THAT ACTIONS BY THE DEFENDANT CREATED THE HAZARD PRECLUDED DIRECTED VERDICT. III. EVIDENCE THAT THE DEFENDANT BREACHED THE DUTY OF CARE OWED TO THE PLAINTIFF SHOULD HAVE BEEN PRESENTED TO THE JURY AND PRECLUDED DIRECTED VERDICT. Civ.R. 50(A)(4) states the standard for granting a directed verdict at trial: (4) When granted on the evidence. When a motion for a 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. -4- In Texler v. D.O. Summers Cleaners & Shirt Laundry Co. (1998), 81 Ohio St.3d 677, 679, 693 N.E.2d 271, 273, the Ohio Supreme Court recently explained the standard to be set forth in Civ.R. 50(A)(4) as follows: In Wagner, [v. Roche Laboratories (1996), 77 Ohio St.3d 116, 671 N.E.2d 252,] we quoted Strother v. Hutchinson (1981), 67 Ohio St.2d 282, 284-285, 21 O.O.3d 177, 178-179, 423 N.E.2d 467, 469, in setting forth the standard for deciding a motion for a directed verdict or for a judgment notwithstanding the verdict: The law in Ohio regarding directed verdicts is well formulated. In addition to Civ.R. 50(A), it is well established that the court must neither consider the weight of the evidence nor the credibility of the witnesses in disposing of a directed verdict motion. * * * Thus, `if there is substantial competent evidence to support the party against whom the motion is made, upon which evidence reasonable minds might reach different conclusions, the motion must be denied. Kellerman v. J.S. Durig Co. (1964), 176 Ohio St. 320 [27 O.O.2d 241, 199 N.E.2d 562] * * *.' Hawkins v. Ivy (1977), 50 Ohio St.2d 114, 115 [4 O.O.3d 243, 244, 363 N.E.2d 367, 368]. In Wagner, we stated that `[t]he reasonable minds test of Civ.R. 50(A)(4) calls upon the court only to determine whether there exists any evidence of substantial probative value in support of [the claims of the party against whom the motion is directed]. * * * A motion for a directed verdict raises a question of law because it examines the materiality of the evidence, as opposed to the conclusions to be drawn from the evidence.' Ruta v. Breckenridge-Remy Co. (1982), 69 Ohio St.2d 66, 68-69, 23 O.O.3d 115, 116-117, 430 N.E.2d 935, 938. Wagner, 77 Ohio St.3d at 119-120, 671 N.E.2d at 255-256. Under this standard, the issue is to determine whether or not appellant presented evidence to overcome appellee's motion for a directed verdict. -5- To establish liability on the part of appellee, appellant was required to present any evidence of appellee's negligence. In Combs v. First National Supermarkets, Inc. (1995), 105 Ohio App.3d 27, 29-30, 663 N.E.2d 669, 670-71, we stated: The law in the state of 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: 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. Appellant's evidence did not establish that a spill other than the apple juice appellant was carrying existed on the floor. Even if a spill or other substance was on the floor, appellant has provided no evidence that appellee was aware of a spill, or that a spill was in the store for more than the reasonable amount of time necessary to impute knowledge of it to appellee. Accordingly, the trial court did not err by granting a directed verdict in favor of appellee. The judgment of the court is affirmed. -6- 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. JOSEPH J. NAHRA JUDGE BLACKMON, A.J., and O'DONNELL, J., CONCUR. 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 .