COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73613 BARBARA BYERS : ACCELERATED DOCKET : Plaintiff-appellant : JOURNAL ENTRY : AND -vs- : OPINION : RISER FOODS INC., ET AL. : PER CURIAM : Defendants-appellees : DATE OF ANNOUNCEMENT OF DECISION: APRIL 30, 1998 CHARACTER OF PROCEEDING: Civil appeal from the Court of Common Pleas Case No. CP-CV-323992 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: For Defendants-Appellees: DALE R. FRIEDLAND, ESQ. DENNIS R. FOGERTY, ESQ. 55 Public Square, Suite 1750 DAVIS & YOUNG Cleveland, Ohio 44113-1901 1700 Midland Building Cleveland, Ohio 44115 -2- PER CURIAM: Appellant, Barbara Byers, is appealing the trial court's grant of summary judgment in favor of appellees, Riser Foods, Inc. and Rego's Stop & Shop #4. For the following reasons, we affirm. Appellant deposed that she arrived in the parking lot of Rego's Stop & Shop #4, intending to go shopping. Appellant pushed a shopping cart from the parking lot to the store, because often there were no carts in the store. A plastic bag was in the cart, and appellant grabbed it to throw it away. The bag contained broken glass, and appellant sustained a tendon laceration and small bone chip. The contents of the bag was not apparent to appellant when she picked the bag up. Appellant further deposed that she did not know how long the shopping cart had been in the parking lot, or how long the bag had been in the shopping cart. She had no idea who placed the bag in the shopping cart. Appellant stated it was not unusual to see papers or empty cans in the carts. Appellant sued Rego Stop & Shop #4 and an affiliated company, Riser Foods, for negligence. The trial court granted summary judgment in favor of defendants-appellees. Appellant's sole assignment of error states: WHETHER THE TRIAL COURT ERRED IN GRANTING A MOTION FOR SUMMARY JUDGMENT WHEN THERE WAS A TRIABLE ISSUE OF FACT INVOLVED CONCERNING WHETHER CIRCUMSTANCES CREATED A DUTY ON THE PART OF THE DEFENDANT PROPERTY OWNER TO INSPECT SHOPPING CARTS REGULARLY LEFT IN ITS PARKING LOT FOR ITS CUSTOMERS IN ORDER TO PROTECT ITS PATRONS AGAINST REASON- ABLY FORESEEABLE HAZARDS. Summary judgment is appropriate upon the demonstration that -3- there is no genuine issue as to any material fact; that the moving party is entitled to judgment as a matter of law; and that reason- able minds can come to but one conclusion, and that conclusion is adverse to the party against whom the motion for summary judgment is made, who is entitled to have the evidence construed most strongly in his favor. See Civ. R. 56(C), Harless v. Willis Day Warehousing Co.(1978), 54 Ohio St.2d 64, 66. Summary judgement is proper after an adequate time for discovery and upon motion, against a party who fails to establish the existence of an element essential to that party's case, and on which the party will bear the burden of proof at trial. Celotex Corp. v. Catrett (1986), 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265. The moving party bears the initial responsibility of informing the court of the basis for its motion, and identifying those portions of the pleadings, depo- sitions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact. Id. The basis of appellees motion for summary judgment was that there was no evidence showing that appellees breached a duty of care. To establish her negligence claim, appellant must show appellees had a duty of care, breached the duty of care, and such breach proximately caused injury to appellant. Mussivand v. David (1989), 45 Ohio St.3d 314, 318. The parties agreed that appellant was a business invitee, so appellees owed appellant a duty of ordinary care. See Patete v. Benko (1986), 29 Ohio App.3d 325. In order for an invitee to show the premises owner breached this duty -4- of care, the invitee must show either that (1) the defendants created the hazard, or (2) the defendants had actual knowledge of the hazard, or (3) the danger existed for a sufficient length of time 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, Baudo v. Cleveland Clinic Foundation (1996), 113 Ohio App.3d 245, Combs v. First National Supermarkets, Inc. (1995), 105 Ohio App.3d 27. Appellant deposed that she did not know who put the bag in the cart or how long the bag had been in the cart. Thus, there was no evidence that appellees had actual or constructive knowledge of the hazard or that appellees created the hazard. Appellees met their initial burden to identify portions of the record which establish the lack of a genuine issue of fact. Appellant asserts that appellees had constructive notice of the bag of glass in the cart, because carts frequently contained papers and cans. A premises owner is only obligated to exercise reasonable care and take reasonable precautions to protect an invitee from foreseeable dangers. Perry v. Eastgreen Realty Co. (1978), 53 Ohio St.2d 51. The fact that papers and cans were in the carts did not present any foreseeable danger. The presence of paper and cans in the carts did not result in constructive notice of a bag of glass in the cart. Appellant also argues that the cart was furnished and maintained by appellees, so appellees' actual or imputed knowledge of the defect is not required. Appellant cites 76 Ohio -5- Jurisprudence 3d (1987 Supp. 1997), Premises Liability, Section 34, which cites Stephen v. Akron Palace Theatre Corp. (1936), 53 Ohio App. 434, 436-437. Stephen deals with defects created by the premises owner, not defects created by some intervening agency. Additionally, the Ohio Jurisprudence section cited goes on to require actual or constructive notice if the premises owner did not create the defect. See also, Johnson, Baudo, supra. Accordingly, appellant's assignment of error is overruled. The decision of the trial court is affirmed. -6- It is ordered that appellees 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 M. PORTER, PRESIDING JUDGE ANN DYKE, JUDGE JOSEPH J. NAHRA, 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 .