COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73726 SYLVIA BOXERBAUM: ACCELERATED DOCKET : Plaintiff-Appellant : : : -vs- : JOURNAL ENTRY : AND MARC GLASSMAN, INC. : OPINION : : PER CURIAM Defendant-Appellee : DATE OF ANNOUNCEMENT : JULY 30, 1998 OF DECISION : Civil appeal from CHARACTER OF PROCEEDING : Common Pleas Court Case No. CV-325023 JUDGMENT : Affirmed. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellant: David J. Sternberg, Esq. Sternberg & Zeid 7547 Mentor Avenue Mentor, Ohio 44060-5466 For defendant-appellee: Lisa S. Friedman, Esq. Jack Schulman, Esq. Schulman, Schulman & Meros 1700 Standard Building 1370 Ontario Street Cleveland, Ohio 44113 PER CURIAM: This cause came on to be heard upon the accelerated calender pursuant to App.R. 11.1 and Loc. App.R. 25, the record from the -2- Cuyahoga County Court of Common Pleas and the briefs of counsel. Sylvia Boxerbaum, plaintiff-appellant, appeals from the judgment of the trial court, Case No. CV-325023, which granted summary judgment in favor of Marc Glassman, Inc., defendant-appellee, on plaintiff- appellant's personal injury complaint. Plaintiff-appellant assigns one error for this court's review. Plaintiff-appellant's appeal is not well taken. On January 31, 1996, plaintiff-appellant slipped and fell in a vestibule leading to the rear entrance of Marc's, a discount drug store, located at 13883 Cedar Road in South Euclid, Ohio. Plaintiff-appellant allegedly injured her back in the fall. On January 22, 1997, plaintiff-appellant filed a personal injury action against defendant-appellee alleging that her injuries were caused by defendant-appellee's negligent failure to maintain the floor of the entrance in a safe condition and/or warn her of the slippery, dangerous and unsafe condition existing on the property. Plaintiff-appellant maintained that her fall was caused by the accumulation of ice and snow on the edge of a storm mat placed in the vestibule by defendant-appellee. On September 15, 1997, defendant-appellee filed a motion for summary judgment in which it maintained that a store owner cannot be held liable for injuries sustained by a business invitee caused by ice, snow, slush or water tracked into the premises by third persons. Plaintiff-appellant filed her brief in opposition on October 10, 1997, in which she maintained that the store manager and employees knew of the condition prior to her fall and failed to -3- maintain the storm mats accordingly or post warning signs regarding the hazardous condition of the floor. On November 12, 1997, the trial court granted defendant- appellee's motion for summary judgment without opinion. Plaintiff- appellant now appeals from that judgment. Plaintiff-appellant's sole assignment of error on appeal states: THE TRIAL COURT ERRED IN GRANTING DEFENDANT-APPELLEE'S MOTION FOR SUMMARY JUDGMENT. Plaintiff-appellant argues, through her sole assignment of error, that the defendant-appellee failed to meet its burden under Civ.R. 56 for summary judgment. It is plaintiff-appellant's position that a genuine issue of material fact existed as to whether defendant-appellee, by placing the storm mats in the vestibule, created a condition that was substantially more dangerous than that which existed normally. Plaintiff-appellant maintains further that a genuine issue of fact existed as to whether defendant-appellee's employees adequately maintained the area in question and whether warning signs should have been posted alerting business invitees to the potentially dangerous condition. The standard for granting a motion for summary judgment is set forth in Civ.R. 56(C). In applying this rule, the Ohio Supreme Court has consistently held that, before such a motion can be granted, the moving party must show that: (1) there is no genuine issue of fact; (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 -4- most strongly in favor of the non-moving party, that conclusion is adverse to the party against whom the motion for summary judgment is made. Mootispaw v. Eckstein (1996), 76 Ohio St.3d 383; Welco Industries, Inc. v. Applied Cas. (1993), 67 Ohio St.3d 344; Osborne v. Lyles (1992), 63 Ohio St.3d 326. A motion for summary judgment forces the non-moving party to produce evidence on issues for which that party bears the burden of production at trial. Wing v. Anchor Media, Ltd. of Texas (1991), 59 Ohio St.3d 108, syllabus. The non-movant must also present specific facts and may not merely rely upon the pleadings or upon unsupported allegations. Shaw v. Pollack & Co. (1992), 82 Ohio St.3d 656. When a party moves for summary judgment supported by evidentiary material of the type and character set forth in Civ.R. 56(E), the opposing party has a duty to submit affidavits or other material permitted by Civ.R. 56(C) to show that there is a genuine issue for trial. Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64. In Dresher v. Burt (1996), 75 Ohio St.3d 280, the Ohio Supreme Court discussed the standard to be applied when reviewing motions for summary judgment. The court stated: Again, we note that there is no requirement in Civ.R. 56 that any party submit affidavits to support a motion for summary judgment. See, e.g., Civ.R. 56 (A) and (B). There is a requirement, however, that a moving party, in support of a summary judgment motion, specifically point to something in the record that comports with the evidentiary materials set forth in Civ.R. 56(C). Id. at 298. -5- The court's analysis of an appeal from a summary judgment is conducted under a de novo standard of review. See, Maust v. Bank One Columbus, N.A. (1992), 83 Ohio App.3d 103, 107; Howard v. Willis (1991), 77 Ohio App.3d 133. No deference is given to the decision under review, and this court applies the same test as the trial court. Bank One of Portsmouth v. Weber (Aug. 7, 1991), Scioto App. No. 1920, unreported. It is well established that a store owner owes a business invitee a duty of ordinary care in maintaining the premises in a reasonably safe condition so that patrons are not unnecessarily and unreasonably exposed to danger. Paschal v. Rite Aid Pharmacy, Inc. (1985), 18 Ohio St.3d 203, 480 N.E.2d 474. However, a store owner is not an insurer of a customer's safety, and is under no duty to protect patrons from conditions which are known to such invitee or are so obvious and apparent to such invitee that he may reasonably be expected to discover them and protect himself against them. Id.at 203 quoting Sidle v. Humphrey (1968), 13 Ohio St.2d 45, 233 N.E.2d 589, paragraph one of the syllabus. The duty of a store owner is to warn of latent or concealed defects or perils. Parsons v. Lawson Co. (1989), 57 Ohio App.3d 49, 50, 566 N.E.2d 698. InBoles v. Montgomery Ward & Co. (1950), 153 Ohio St. 381, 92 N.E.2d 9, the Ohio Supreme Court stated: Ordinarily, no liability attaches to a store owner or operator for injury to a patron who slips and falls on the store floor which has become wet and slippery by reason of water and slush tracked in from the outside by other patrons. -6- Id. at paragraph two of the syllabus. The Boles court did recognize, however, that cases of this type sometimes involve narrow distinctions and a decision in each case depends largely on the facts of a particular case. Id. at 384. Therefore, water and slush tracked into a store by other customers may be considered an open and obvious condition for which no liability attaches where the invitee may reasonably be expected to discover the condition and protect himself accordingly. Sollo v. Goodnight Inn, Inc. (Jan. 16, 1998), Sandusky App. No. S-96-049, unreported. In the case sub judice, plaintiff-appellant maintains that she slipped and fell on an ice and snow mixture that had accumulated on a storm mat inside the vestibule of Marc's. Plaintiff-appellant had no knowledge as to how the slush mixture came to be or how long it had been on the mat. Plaintiff-appellant maintains further that the placement of the storm mat by defendant-appellee somehow created an unnatural accumulation of ice and snow thereby precluding summary judgment. Plaintiff-appellant argues that defendant-appellee was clearly aware of the problem since the store manager testified that the storm mat was periodically cleaned during the day by two employees of defendant-appellee. While plaintiff-appellant does not know precisely how the slush came to accumulate on the mat or how long it had been there, it is reasonable to infer, given the time of year, that the slush was tracked into the entryway by other patrons of Marc's. It is also apparent from the testimony presented that this condition was equally obvious to both the premises owner and plaintiff-appellant -7- to the extent that plaintiff-appellant could reasonably be expected to protect herself accordingly. Sollo, supra, at 3, McCornell v. Bridges (Dec. 18, 1997), Cuyahoga App. No. 71988, unreported, Morgan v. Eastown Eagle Supermarket (Nov. 14, 1991), Cuyahoga App. No. 59359, unreported. In addition, plaintiff-appellant's position that the storm mat somehow caused an unnatural accumulation of ice and snow to accumulate in the entryway of the store is unsupported by the record. There is no evidence that the mat itself caused plaintiff- appellant's fall in any way. The mat did not slip nor did it fold or crease causing plaintiff-appellant to trip. There is simply no evidence that the placement of the storm mat rendered the condition of the linoleum floor in the entryway to the store more dangerous than if defendant-appellee had left the floor uncovered. Morgan, supra, at 2, Coletta v. University of Akron (Aug. 25, 1988), Franklin App. No. 88 AP-102, unreported. For the foregoing reasons, plaintiff-appellant's sole assignment of error is not well taken. Judgment of the trial court is affirmed. -8- It is ordered that appellee recover of appellant 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 Cuyahoga County 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, PRESIDING JUDGE JOHN T. PATTON, J., JUDGE MICHAEL J. CORRIGAN, 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 .