COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 74356 JOANNE IPPOLITO : ACCELERATED DOCKET : : JOURNAL ENTRY PLAINTIFF-APPELANT : : AND v. : : OPINION MARC'S DISCOUNT DRUG STORES, : ET AL. : PER CURIAM : DEFENDANTS-APPELLEES : DATE OF ANNOUNCEMENT OF DECISION: NOVEMBER 5, 1998 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court, No. CV-307024. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: Mark T. Gibbons, Esq. Weisman, Goldberg & Weisman Co., L.P.A. 101 Prospect Avenue West 1600 Midland Building Cleveland, OH 44115 For Defendants-Appellees: Lisa S. Friedman, Esq. Jack Schulman, Esq. Schulman, Schulman & Meros 1700 Standard Building 1370 Ontario Street Cleveland, OH 44113 -2- For Defendants-Appellees Barbara L. Armstrong, Esq. (Continued): Nancy Howe Donnelly, Esq. Rosemary G. Gold, Esq. Harold R. Rauzi, Esq. Buckley, King & Bluso 1400 Bank One Center Cleveland, OH 44114-2652 -3- PER CURIAM: This cause came on to be heard upon the accelerated calendar pursuant to App.R. 11.1 and Loc.R. 25, the records from the Cuyahoga County Court of Common Pleas and the briefs of counsel on appeal. Plaintiff-appellant Joanne Ippolito ( appellant ) appeals the decisions of the Cuyahoga Court of Common Pleas wherein the court granted summary judgment in favor of each defendant-appellee, Marc's Discount Drug Stores and Alco Industries ( appellees ), on her claims against them for injuries she sustained. For the reasons stated below, we affirm. On April 17, 1996, appellant brought the within action against each appellee for injuries allegedly incurred on March 13, 1995, while she was shopping at Marc's store in Mentor, Ohio. Appellant asserts that a Floating Essence candleholder, which had been supplied to Marc's Discount Drug Stores by Alco Industries, broke as she was attempting to return it into its original space in its display. Appellant alleged as a result of this breakage a piece of glass cut the cornea of her left eye. Each appellee filed a motion for summary judgment on appellant's complaint. On January 6, 1998, after briefing on the motion, the trial court granted judgment in favor of appellee Marc's and after briefing on appellee Alco Industries' motion on April 6, 1998, the trial court granted judgment in its favor. Appellant brings this timely appeal and advances two assignments of error for our review. -4- I. THE TRIAL COURT ERRED IN GRANTING DEFENDANT-APPELLEE MARC'S DISCOUNT DRUG STORES' MOTION FOR SUMMARY JUDGMENT. II. THE TRIAL COURT ERRED IN GRANTING DEFENDANT-APPELLEE ALCO INDUSTRIES' MOTION FOR SUMMARY JUDGMENT. Because they have a common basis in law and fact, we shall consider appellant's assignments of error together. In each of her assigned errors appellant complains that the trial court erred in granting summary judgment in favor of appellees. This court reviews the lower court's grant of summary judgment de novo. Brown v. Scioto Bd. of Commrs. (1993), 87 Ohio App.3d 704. An appellate court applies the same test as a trial court, which test is set forth in Civ.R. 56(C) and specifically provides that before summary judgment may be granted it must be determined that: (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 party against whom the motion for summary judgment is made, that conclusion is adverse to that party. Temple v. Wean United Inc., (1977), 50 Ohio St.2d 317, 327. Moreover, it is well settled that the party seeking summary judgment bears the burden of showing that no genuine issue of material fact exists for trial. Celotex Corp. v. Catrett (1987), 477 U.S. 317, 330; Dresher v. Burt (1996), 75 Ohio St.3d 280. Doubts must be resolved in favor of the nonmoving party. Murphy v. Reynoldsburg (1992), 65 Ohio St.3d 356, 358-359. -5- In accordance with Civ.R. 56(E), a nonmovant may not rest on the mere allegations or denials of his pleading but must set forth specific facts showing there is a genuine issue for trial. Chaney v. Clark Cty. Agricultural Soc. (1993), 90 Ohio App.3d 421. The nonmoving party must produce evidence on any issue for which that party bears the burden of production at trial. Dresher, supra; Celotex, supra at 322. In order to sustain an action in negligence, a party must establish the three essential elements: duty, breach of the duty, and an injury proximately caused by the breach. Menifee v. Ohio Welding Products, Inc. (1984), 15 Ohio St.3d 75. An owner or occupier has a duty to protect or warn an invitee from or against known or hidden dangers. Paschal v. Rite Aid Pharmacy (1985), 18 Ohio St.3d 203. However, a premises owner has no duty to protect a business invitee against dangers 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. Sidle v. Humphrey (1968), 13 Ohio St.3d 45. Further, to maintain an action grounded in products liability it must be shown by a preponderance of the evidence that there was a defect in the product manufactured and sold by the defendant; such defect existed at the time the product left the hands of the defendant; the defect was the direct and proximate cause of the injury or loss. Lonzrick v. Republic Steel Corp. (1966), 6 Ohio St.2d 227. Finally, it is incumbent upon the party to produce evidence constituting the negligence or proof of facts from which negligence might be -6- presumed. Gedra v. Dallmer (1950), 153 Ohio St. 258; Mines v. Russo's Stop & Shop (Feb. 23, 1989), Cuyahoga App. No. 55073, unreported. Boles v. Montgomery Ward (1950), 153 Ohio St. 381, 389. She may not rely on mere conjecture, guess, random judgment or supposition in support of her case. Id. at paragraph six of the syllabus. The deposition testimony of appellant indicates that one or more of the boxed candles exploded when: *** as I put it where it was supposed to go, I tried to get it in, I couldn't get it into that hole because evidently the expansion and contraction, but as I went to put it in, I tried to--I tried to force it just a tad to get it to stay in there, that's when the--the burst, whatever, the explosion of the other ones happened. As to her opinion as to why the boxes exploded, appellant responded *** I said this [expanding and contracting] was my opinion as to the boxes as to why it exploded. Now maybe it didn't explode because of that. Maybe it was bad packaging. I have no idea. Moreover, appellant further stated, I don't think there was anything wrong with the display ***. The record demonstrates that appellant did not come forward with evidence showing a genuine issue for trial that appellees had created, had knowledge, or had notice of the alleged defect: 1) in the product; 2) in the packaging; or 3) in the display of the candleholders. Therefore, consistent with the record before us and the law as stated above, we conclude that even where we view the evidence most strongly in favor of appellant, appellant's failure -7- to offer evidence as to the cause of the explosion of the candleholder is dispositive of the issues before us. We find that the trial court properly entered summary judgment in favor of each appellee. Judgment affirmed. -8- It is ordered that appellees recover of appellant their costs herein 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 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 TIMOTHY E. McMONAGLE, JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(D) and 26(A); Loc.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 .